2025 INSC 1116 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 276 OF 2025

IN RE: THE WAQF AMENDMENT ACT, 2025 (1)

WITH

WRIT PETITION (CIVIL) NO. 814 OF 2013

WRIT PETITION (CIVIL) NO. 269 OF 2025

WRIT PETITION (CIVIL) NO. 284 OF 2025

WRIT PETITION (CIVIL) NO. 314 OF 2025

WRIT PETITION (CIVIL) NO. 331 OF 2025

WRIT PETITION (CIVIL) NO. 344 OF 2025

WRIT PETITION (CIVIL) NO. 353 OF 2025

WRIT PETITION (CIVIL) NO. 375 OF 2025

WRIT PETITION (CIVIL) NO. 381 OF 2025

WRIT PETITION (CIVIL) NO. 398 OF 2025

WRIT PETITION (CIVIL) NO. 415 OF 2025

WRIT PETITION (CIVIL) NO. 427 OF 2025

WRIT PETITION (CIVIL) NO. 431 OF 2025

WRIT PETITION (CIVIL) NO. 436 OF 2025

WRIT PETITION (CIVIL) NO. 439 OF 2025

WRIT PETITION (CIVIL) NO. 440 OF 2025

WRIT PETITION (CIVIL) NO. 445 OF 2025

WRIT PETITION (CIVIL) NO. 447 OF 2025

WRIT PETITION (CIVIL) NO. 450 OF 2025

2

WRIT PETITION (CIVIL) NO. OF 2025

DIARY NO. 19103 OF 2025

TRANSFER PETITION (CIVIL) NO. 1316 OF 2025

INTRODUCTION ................................................................................. 3

SUBMISSIONS ................................................................................... 6

i. On behalf of the Petitioners ..................................................... 6

ii. On behalf of the Respondents ................................................ 18

iii. Rejoinder ............................................................................ 40

DISCUSSION AND ANALYSIS ............................................................ 44

i. Scope of Grant of Interim Relief............................................. 45

ii. Legislative History of Waqf .................................................... 54

a. Mussalman Wakf Act, 1923 .................................................. 54

b. Bengal Wakf Act, 1934 ......................................................... 57

c. Wakf Act, 1954 ..................................................................... 58

d. Wakf Enquiry Committee & Wakf (Amendment) Act, 1984 .... 61

e. Waqf Act, 1995 ..................................................................... 65

iii. Consideration of the provisions of the impugned Act ............. 72

a. Section 4(ix)(a) of the impugned Act ...................................... 79

b. Section 4(ix)(b) of the impugned Act ...................................... 84

c. Section 5 of the impugned Act (Section 3C of the

Amended Waqf Act) ................................................................... 88

d. Section 5 of the impugned Act (Section 3D of the

Amended Waqf Act) ................................................................... 98

e. Section 5 of the impugned Act (Section 3E of the

Amended Waqf Act) ................................................................. 100

f. Sections 10, 12 and 16 of the impugned Act ....................... 103

g. Section 21 of the impugned Act .......................................... 113

h. Section 43 of the impugned Act .......................................... 117

i. Section 44 of the impugned Act ........................................... 120

j. Section 45 of the impugned Act ........................................... 121

CONCLUSION ................................................................................. 124

3

J U D G M E N T

B.R. GAVAI, CJI

INTRODUCTION

1. The first five writ petitions in this batch of matters

being Writ Petition (Civil) Nos. 276, 314, 284, 331 and 269 of

2025 challenge the validity of several of the Sections of the Waqf

(Amendment) Act, 2025,

1 on the ground of they being ultra vires

the Constitution of India being violative of Articles 14, 15, 19, 21,

25, 26, 29, 30 and 300A of the Constitution.

2. Though the petitioners seek to challenge the

constitutionality of almost all the Sections of the impugned Act,

from the tenor of the arguments advanced, it is apparent that the

main challenge is to the amendments carried out in Section 3(r),

3C, 3D, 3E, 9, 14, 23, 36, 104, 107, 108, 108A of the Unified

Waqf Management, Empowerment, Efficiency and Development

Act, 1995

2. It is, therefore, clear that the most contentious

Sections of the impugned Act are Sections 4(ix)(a), 4(ix)(b), 5, 10,

1

Hereinafter referred to as “impugned Act”.

2

Hereinafter referred to as “Amended Waqf Act”.

4

12, 16, 21, 43, 44 and 45 which have amended the provisions of

the Waqf Act, 1995

3.

3. At the outset, Shri Tushar Mehta, the learned Solicitor

General, appearing on behalf of the respondent-Union of India

submitted that at the hearing which took place on 16

th April 2025

and 17

th April 2025, this Court had identified the following three

issues for consideration at the interim stage:

(i) Challenge to Section 3(r) of the Amended Waqf Act,

which de-recognises ‘Waqf by user’ prospectively;

(ii) Challenge to special provision for Government

Properties under Section 3C of the Amended Waqf Act;

and

(iii) Changes in the composition of the Central Waqf Council

and State Waqf Board under Section 9 and 14 of the

Amended Waqf Act, respectively.

4. This position was, however, disputed by Shri Kapil

Sibal, the learned Senior Counsel appearing on behalf of one of

the petitioners. It was submitted by the learned Senior Counsel

3

Hereinafter referred to as “Original Waqf Act”.

5

that there is nothing on record to that effect. We, therefore,

proceeded to consider all the issues raised by the parties on the

question of interim relief.

5. It is also relevant to note that when the matter was

heard by the previous Bench presided over by the then Chief

Justice of India, Shri Sanjiv Khanna on 17

th April 2025, on

certain aspects, a statement of the learned Solicitor General to

the following effect was recorded:

“…He assures this Court that till the next date of

hearing, no appointments would be made to the

Central Waqf Council and the Waqf Boards in the

States and the National Capital Territory of Delhi,

under Sections 9 and 14 respectively of the principal

Act, that is, the Unified Waqf Management,

Empowerment, Efficiency and Development Act,

1995, as amended by the Waqf (Amendment) Act,

2025. He further states that if the Government of any

State or the National Capital Territory of Delhi makes

any such appointment(s), the same may be declared

void.

It is also stated that till the next date of hearing, no

Waqf, including a Waqf by user, whether declared by

way of notification or by way of registration, shall be

de-notified, nor will their character or status be

changed.”

6

SUBMISSIONS

6. We extensively heard Shri Kapil Sibal, Dr. Rajeev

Dhavan, Dr. A.M. Singhvi, Shri C.U. Singh and Shri Huzefa

Ahmadi, learned Senior Counsel appearing on behalf of the

petitioners. We also heard at length Shri Tushar Mehta, learned

Solicitor General of India appearing on behalf of the Union of

India as well as Shri Rakesh Dwivedi, Shri Ranjit Kumar, Shri

Gopal Sankaranarayanan and Shri Guru Krishna Kumar ,

learned Senior Counsel appearing on behalf of intervenors

supporting the stand of the Union of India.

i. On behalf of the Petitioners

7. Shri Sibal, learned Senior Counsel submitted that

though the impugned Act says that it has been enacted to

“protect” Waqfs, but the real intention behind it is to take away

or expropriate the Waqf properties. It was submitted that till

2025, the registration of a Waqf was not mandatory inasmuch as

though under the Mussalman Waqf Act, 1923, and later on in the

Original Waqf Act which was continued till 2013, there was

provision for registration of a Waqf, however, no consequences

7

were provided for non-compliance except the removal of the

Mutawalli.

8. He submitted that prior to 1954, registration of a “Waqf

by User” was not necessary. He further submitted that by virtue

of Sections 4(ix)(b) and 4(ix)(e) of the impugned Act, the provision

of “Waqf by User” has been deleted and the proviso inserted in

Section 3(r) now requires the existing “Waqf by User” to have

registered on or before the commencement of the impugned Act.

9. Challenging the provision of Section 3D of the Amended

Waqf Act, Shri Sibal would submit that under the various

enactments in existence from 1904 to 1958, the right to religious

practices, even in buildings which were ancient monuments, was

preserved. It is submitted that, however by virtue of the newly

added provision contained in Section 3D, on notification of any

monument as a “protected monument”, the declarations made

under the Waqf Acts shall be void. He further submitted that the

impugned Act infringes upon the rights of the citizens to

continue with their religious practices which is violative of Article

14, 15, 25 and 26 of the Constitution.

8

10. Insofar as the amendment to Section 3(r) by virtue of

Section 4(ix)(a) of the impugned Act is concerned, Shri Sibal

submitted that the requirement that one has to “show or

demonstrate” that he is practicing Islam for at least five years for

the declaration of any movable or immovable property as Waqf is

totally discriminatory and arbitrary. He further submitted that

no such provision is there insofar as other religions are

concerned. Shri Sibal, therefore, submitted that such a

requirement is in clear violation of Articles 14, 15, 19, 21, 25 and

26 of the Constitution.

11. Further, Shri Sibal submitted that Section 3E of the

Amended Waqf Act provides that no land belonging to members

of Scheduled Tribes under the provisions of the Fifth and Sixth

Schedule of the Constitution is permitted to be declared or

deemed to be Waqf property. He submitted that such a restriction

is a direct attack on the religious freedom of persons belonging

to Scheduled Tribes who are practicing Islam and who desire to

donate their properties for creation of a Waqf.

9

12. Shri Sibal submitted that the amendments to

provisions contained in Sections 9, 14 and 23 of the Original

Waqf Act have a direct impact on the Muslim community as

majority of the members in the Waqf Council and Waqf Boards

could be non-Muslims and they would be permitted to interfere

in the affairs of the Waqfs, thereby directly affecting the rights of

the Muslims to independently manage the affairs of their

religious practice.

13. He further submitted that under Section 9 of the

Amended Waqf Act, which pertains to the establishment and

constitution of Central Waqf Council, out of 22 members, 12

members could be non-Muslims, thereby leaving space only for

10 Muslims in the Council. Similarly, under Section 14 of the

Amended Waqf Act which pertains to composition of the Board

for a State and the National Capital Territory of Delhi, it is

submitted that out of 11 members, 7 members could be non -

Muslims, again enabling a majority of non-Muslims to manage

the affairs of the Waqf.

10

14. It is further submitted that under Section 23 of the

Amended Waqf Act, the Chief Executive Officer of the Board was

earlier required to be a Muslim but by virtue of the impugned

Act, he will now have to be a person not below the rank of Joint

Secretary to the State Government and not necessarily be a

Muslim. Not only that but it was also submitted that the mode

of constituting the Board has now been changed from election to

nomination by the Government.

15. Insofar as Section 3C of the Amended Waqf Act is

concerned, Shri Sibal submitted that under sub-section (1) of

Section 3C, any “Government property” identified or declared as

Waqf property, before or after the commencement of the Act, will

not be deemed to be a Waqf property. He submitted that sub-

section (2) of Section 3C is totally arbitrary inasmuch as if a

question arises as to whether any property is a Waqf property,

the State Government can nominate a designated officer, above

the rank of Collector, to conduct an inquiry as per law and to

determine whether the property in question is a Government

property or not and submit a report to the State Government. It

is submitted that the term “Government property” as defined in

11

Section 3(fb) of the Amended Waqf Act read with the definition of

“Government Organization” in Section 3(fa) thereof allows even a

tenuous/arbitrary connection with the State, to defeat the Waqf

status of a property. It is further submitted that the words used

in Section 3C of the Amended Waqf Act are “as per law” and no

detailed guidelines as to in what manner the inquiry would be

conducted by the designated officer have been provided making

the provision totally arbitrary. It is further submitted that the

proviso to sub-section (2) of Section 3C is also totally

unconstitutional inasmuch as even before the report is

submitted, the property in question will cease to be Waqf

property.

16. Shri Sibal submitted that the only remedy available to

a Waqf in such a case is to approach the Tribunal as provided

under Section 83 of the Amended Waqf Act. However, it is

submitted that even before the findings of the inquiry report can

be challenged before the Tribunal, as per sub-sections (3) and (4)

of Section 3C of the Amended Waqf Act, the status of the property

in question would be automatically changed in the revenue

records as Government property and the Waqf loses its

12

possession. It is, therefore, submitted that on the unilateral

decision of the designated officer, the property declared as a Waqf

will cease to be the property of the Waqf and the Waqf will be left

high and dry, knocking on the doors of the Waqf Tribunal.

17. Shri Sibal further submitted that Sections 3C and 3D

of the Amended Waqf Act were not circulated in the original bill

and as such there could not be any discussion on the same either

in the Joint Parliamentary Committee

4 or the Parliament and

they were enacted unilaterally.

18. It was further submitted by the learned Senior Counsel

that under the Original Waqf Act, sub-sections 1(A), 2 and 3 of

Section 4 provided for an elaborate procedure for conducting a

survey of the auqaf. However, by Section 6(c) of the impugned

Act, the said provisions have been done away with.

19. Shri Sibal further submitted that in view of Section 36

of the Amended Waqf Act, the requirement of registration of every

Waqf with the Board has been made mandatory. It has been

further provided that on or after the commencement of the

4

Hereinafter referred to as “JPC”.

13

impugned Act, no Waqf shall be created without execution of the

Waqf Deed. Shri Sibal submitted that the said provision is totally

contrary to the tenets of Islamic law. It is submitted that under

the Islamic law, a Waqf can be created even by an oral gift. It is,

therefore, submitted that such a provision adversely affects the

rights of practicing Muslims to create a Waqf by an oral gift.

20. Shri Sibal, thereafter, invited the attention of this Court

to sub-sections (7) and (7A) of Section 36 of the Amended Waqf

Act; as per which on receipt of an application for registration, the

Board shall forward the application to the Collector to inquire

into the genuineness and validity of the application and in case,

the Collector, in his report, mentions that the property, wholly or

in part, is “in dispute” or is a “Government property”, the Waqf

shall not be registered unless the dispute is decided by a

competent court. It was, accordingly, submitted that in view of

sub-sections (7) and (7A) of Section 36 read with sub-section (10)

thereof, a Waqf which is not registered has been rendered

remediless inasmuch as it bars any suit, appeal or other legal

proceedings for enforcement of any right of the Waqf. It is,

14

therefore, submitted that this is a “wholesale takeaway” of the

entire community’s rights.

21. Shri Sibal further submitted that Section 108 of the

Original Waqf Act was a special provision in respect of the Waqf

created out of evacuee properties. It is submitted that by the

impugned Act, the said provision has totally been omitted,

thereby prohibiting the Waqf from being created out of the

evacuee properties.

22. Dr. Dhavan, learned Senior Counsel, submitted that

earlier provision contained in Section 104 of the Original Waqf

Act, which applied to the properties given and donated by

persons not professing Islam for support of certain Waqfs, has

been deleted by Section 43 of the impugned Act, thereby putting

restriction on non-Muslims to donate their properties for the

Waqf related activities. It is submitted that the same is violative

of provisions of Part III of the Constitution.

23. Dr. Dhavan submitted that by insertion of the second

proviso to Section 2 of the Original Waqf Act, there is now a

restriction on the applicability of the Act to a “trust” created by a

15

Muslim for carrying out activities similar to a Waqf. He submitted

that prior to the said amendment, even a Muslim could have

created a trust similar to Waqf for charitable purposes. However,

that right has now been taken away by virtue of Section 3 of the

impugned Act.

24. Dr. Dhavan further submitted that the impugned Act

is a direct attack on the secular character of the Constitution

inasmuch as it adversely affects the right to preserve culture

under Article 25 of the Constitution.

25. Insofar as the deletion of provision qua “Waqf by User”

is concerned, Dr. Dhavan has relied on paragraph 1,134 of the

judgment of a Constitution Bench of this Court in M. Siddiq

(Dead) Through Legal Representatives (Ram Janmabhumi

Temple Case) v. Mahant Suresh Das and Others

5.

26. Dr. Abhishek Manu Singhvi, learned Senior Counsel

submitted that the amendment to the provision contained in

Section 3(r) of the Original Waqf Act, insofar as showing or

demonstrating at least five years of practice of Islam is

5

(2020) 1 SCC 1

16

concerned, was done totally to infuse terror and give entire

control in the hands of the State leading to endless visits to

government offices and thereby harassing them. It is submitted

that there is no such provision insofar as any other religion is

concerned, which requires a person to show practice of a religion

for five years before being able to enjoy their rights. It is,

therefore, submitted that the amended provision is totally

violative of Article 15 of the Constitution of India being

discriminatory solely on the ground of religion.

27. Dr. Singhvi submitted that the impugned Act,

specifically the Sections concerning amendment to Section 36 of

the Original Waqf Act creates a Catch 22 situation. He submitted

that on the one hand the concerned authorities can refuse to

grant the registration as a Waqf on the ground of a dispute and

on the other hand on non-registration of the property as a Waqf,

the concerned parties would be remediless to file any proceedings

in view of sub-section (10) of Section 36 of the Amended Waqf

Act.

17

28. Dr. Singhvi submitted that provision of Section 3D of

the Amended Waqf Act is again wholly discriminatory inasmuch

as it is only Waqfs created by Muslims on which such a

restriction has been imposed and there is no similar provision

with respect to monuments which are being used by the people

belonging to other religions. It is, therefore, submitted that the

said provision is violative of Article 15 of the Constitution.

Dr. Singhvi submitted that even the survey which is a pre -

requisite for giving effect to the provisions of the impugned Act

has not been carried out and it would be clear from the pleadings

of the respondent themselves that only in respect of 5 out of 28

States the survey has been conducted.

29. Shri C.U. Singh, learned Senior Counsel, submitted

that under the provisions of the earlier Acts so also the Original

Waqf Act, the effect of non-registration of a Waqf was a penalty

affecting only the Mutawallis and it did not have any effect on

the Waqf. Now, however, the effect of non-registration directly

reaches the Waqf, thereby affecting the beneficiary of such a

Waqf as defined in Section 3(a) of the Original Waqf Act.

18

30. Shri Ahmadi, learned Senior Counsel submitted that

under the old Section 107, the provisions of the Limitation Act,

1963, were not applicable for any suit for possession of

immovable property comprised in any Waqf or for possession of

any interest in such property. However, by the impugned Act,

specifically Section 44 thereof, the said provision has been

changed thereby making provisions of the Limitation Act, 1963,

applicable to such property. It is submitted that the combined

effect of amendments to Sections 107 and 108 of the Original

Waqf Act, the latter of which has been completely omitted, would

be that if any proceedings in respect of any evacuee property is

to be initiated, the same would be barred by limitation.

ii. On behalf of the Respondents

31. Shri Tushar Mehta learned Solicitor General of India,

in reply submitted that the present proceedings are in the nature

of a Public Interest Litigation. It is submitted that not even a

single person who is said to be affected by the amendments in

question has approached this Court, being aggrieved by any of

the provisions of the impugned Act.

19

32. Shri Mehta submitted that insofar as the legislative

competence of the Parliament to enact the impugned Act is

concerned, the same is not disputed. He further submitted that

the presumption of validity is always in favour of the legislation.

It is submitted that the burden to prove unconstitutionality

would be on the other side, and that a very heavy burden would

lie on them to dislodge the presumption regarding the

constitutionality of the statute in question. He submitted that in

any case, the Court should always be very slow in staying any

provision of the statute unless they are found to be beyond

legislative competence, violative of any of the Fundamental

Rights or any other provision of the Constitution or manifestly

arbitrary. It is submitted that in this regard the petitioners herein

have utterly failed to make out a case for grant of any interim

relief.

33. Learned Solicitor General submitted that the impugned

amendments were carried out by Parliament after taking into

consideration various factors. He submitted that as a matter of

fact, State is bound to keep pace with the changing societal

20

conditions and enact or amend existing laws to deal with

challenges which arise on account of the changes in the society.

34. Learned Solicitor General submitted that the

amendment to the provision with regard to “Waqf by User” is

prospective in nature. He submitted that all such Waqfs which

are registered as on 8

th April 2025, shall stand protected except

in those cases where the Waqf property, is in full or in part, in

dispute or which is a Government property. He submitted that

the purpose behind such provision not being made applicable to

the Government property was that the Government holds a

property for and on behalf of its citizens and that too as a trustee.

He submitted that as a natural corollary, the State is under an

obligation to protect the Government properties. It is further

submitted that many instances had come to notice where large

chunks of properties owned by Governments were claimed to be

property covered by “Waqf by User”. He submitted that the case

of State of Andhra Pradesh (Now State of Telangana) v.

Andhra Pradesh State Wakf Board and Others

6 is one such

6

(2022) 20 SCC 383

21

instance where the State Government was required to approach

the High Court in exercise of writ jurisdiction against the action

of the Andhra Pradesh Waqf Board to declare the land measuring

1,654 acres and 32 guntas as Waqf property. It is submitted that

in the said case, vast chunk of Government land was encroached

upon and the Waqf Board had registered the same as “Waqf by

User”. Upon the dismissal of the Writ Petition filed by the then

State of Andhra Pradesh (now State of Telangana), the question

came up for consideration before this Court. The issues involved

in the said case inter-alia were whether the State Government

was entitled to file the writ petition before the High Court. He

submitted that this Court in the said case held that the State

Government is competent to invoke the writ jurisdiction as it is

the right of the Government to protect the public property.

35. Learned Solicitor General submitted that in another

instance, the Telangana State Waqf Board itself determined a

hotel’s property as not a Waqf property. However, in 2007, the

said position was revisited by the concerned Board and the

hotel’s property was declared to be a Waqf property. It is

submitted that the aforesaid became the subject matter of a lis

22

which culminated in the case of Viceroy Hotels Limited and

Others v. Telangana State Waqf Board and Others

7, whereby

the High Court quashed the claims of the Telangana State Waqf

Board and declared the hotel to be the lawful owner of the

property.

36. Learned Solicitor General further submitted that there

were several such instances where the provision of “Waqf by

User” and the power of the Waqf Board to declare any land as

Waqf property were noticed, which proved to be a safe haven for

encroachment of Government properties and private properties.

Accordingly, in view of such examples, it is submitted that the

deletion of the provision of “Waqf by User” has been carried out

by way of the impugned Act, so as to curb the practice of

encroachment of Government properties on pretext of them being

Waqf property.

37. Shri Mehta countered the submission that Section 3C

of the Amended Waqf Act will be used to “grab” the property of

the Waqf without following provisions of law. He submitted that

7

2024 SCC OnLine TS 689

23

such an argument is totally untenable. He submitted that taking

into consideration the instances where Government properties

were encroached upon and given a colour of “Waqf by User”, the

provision under Section 3C provides only a mechanism whereby

the designated officer will conduct an inquiry after hearing the

affected parties and submit his report. He submitted that the

only consequence of such an inquiry would be that the revenue

records and the Board records would be corrected. He further

submitted that in any case, on a mere declaration or submission

of a report by the designated officer, no rights would be

crystallized and unless a final determination with regard to the

title is made by the Waqf Tribunal or by the further appellate

forums being the High Court or this Court, the possession of the

property cannot be taken away.

38. With respect to the argument qua inclusion of non-

Muslims in the Waqf Council, the learned Solicitor General

submitted that firstly, the Central Waqf Council, primarily, has

an advisory role and cannot be treated as a religious interference.

Secondly, he submitted that advising on “due administration” of

Waqf would not be an interference with the religious activities of

24

the Waqf, as it merely amounts to regulating economic, financial

or other secular activities.

39. Learned Solicitor General further submitted that under

sub-section (4) of Section 9 of the Amended Waqf Act, the Central

Waqf Council is entitled to issue directive on the following

aspects:

a. Financial performance;

b. Survey;

c. Maintenance of waqf deeds;

d. Revenue records;

e. Encroachment of waqf properties; and

f. Annual reports and audit reports.

He submitted that all such activities are secular activities which

do not interfere with the religious practices of the Muslims.

40. He further submitted that in any case as per sub-

section (2) of Section 9 of the Amended Waqf Act, the Council, at

the most, can consist of 4 non-Muslim members which is

inclusive of clause (a) i.e., the Union Minister as in charge of

Waqf – Chairperson, ex officio and clause (g) i.e., the Additional

Secretary or Joint Secretary to the Government of India dealing

25

with Waqf matters in the Union Ministry or

department―member, ex officio. He submitted that insofar as

clauses (b), (d), (e) and (f) are concerned, out of 10 Members to

be appointed as per the said clauses, only 2 are required to be

non-Muslims. It is, therefore, submitted that at any given point

of time, the Council may consist, at the most, 4 non-Muslim

members.

41. Insofar as the members of the Board to be appointed

under Section 14 of the Amended Waqf Act are concerned, it is

submitted that it is only 2 members, excluding ex-officio

members, who could be non-Muslims. It is submitted that, if the

Joint Secretary to the State Government dealing with the Waqf

Property, who is an ex-officio member, is a non-Muslim, then at

the most, at that given point of time, there would be only 3 non-

Muslims in the Board out of a total of 11 members. It is, further

submitted by the learned Solicitor General that the Waqf Board

is declared as a “State” in the case of State of Andhra Pradesh

v. Andhra Pradesh Waqf Board (supra) and therefore once a

statutory body is a “State” within the meaning of Article 12 of the

Constitution, the argument that the Members of the Board

26

should be taken only from one particular religion is not

sustainable in law.

42. It is further submitted by the learned Solicitor General

that the Ministry concerned has specifically made a statement

before the JPC to the following effect:

“9.6.6 Further explaining about the inclusion of non-

Muslim Members in the Council and responding to

the concerns regarding the possibility wherein the

Muslim members may be in minority in the Council,

the Ministry of Minority Affairs stated as under:

…..the changes introduced in the constitution of the

Central Waqf Council (CWC) are designed to create

two categories: one category exclusively for Muslims

(10 members)……. and another category (12

members). Out of this (second) category, two

members will be non-Muslim. Remaining all will be

Muslims.”

43. It is further submitted by the learned Solicitor General

that the JPC, after considering the suggestions of the

stakeholders and justification given by the concerned Ministry,

found that considering the statutory nature of the Central Waqf

Council, inclusion of 2 non-Muslim members would make it

27

more broad based and promote inclusivity and diversity in the

Waqf property management.

44. The learned Solicitor General, with regard to the

argument that the impugned Act is without remedy, submitted

that the said contention is without any substance. He submitted

that under sub-section (1) of Section 83 of the Amended Waqf

Act, the jurisdiction of the Tribunal is wide enough, and it

encompasses within its scope the determination of any dispute,

question or other matters relating to Waqf or Waqf property,

eviction of a tenant or determination of rights and obligations of

the lessor and the lessee of such property. It is submitted that

perusal of the provisions contained in sub-sections (3), (4), (5),

(6), (7), (8) and (9) of Section 83 would reveal that ample remedy

is prescribed for deciding the disputes relating to Waqf or Waqf

property. Not only that, under sub-section (7) it is specifically

provided that, the decision of the Tribunal is final and binding

upon the parties to the application and it shall have the force of

a decree made by a civil court. It is further submitted that sub-

section (8) thereof also provides for execution of any decision of

the Tribunal by the civil court to which such decision is sent for

28

execution. He further submitted that sub-section (9) thereof,

which has been amended by Section 39(f) of the impugned Act,

provides for the right to appeal to the High Court against the

decision of the Tribunal to any person aggrieved.

45. Dealing with the amendment to sub-clause (i) of clause

(r) of Section 3 of the Amended Waqf Act, the learned Solicitor

General submitted that various instances which were noticed

right from 1913 were taken into consideration while effecting the

said amendment to make the requirement of registration

mandatory. The learned Solicitor General further submitted

that, on account of many instances of misuse of the endowments

made for pious, religious or charitable purposes being noticed,

the legislature has been enacting laws from 1923 to control such

a misuse. To illustrate, it is submitted that the Statement of

Objects and Reasons of the Mussalman Waqf Act, 1923, itself

shows that the legislature found it necessary to have a “system

of compulsory registration”. Accordingly, Section 3 of the said

Act provided for compulsory registration, so also, Section 4 of the

said Act provided for publication of particulars and requisition

of further particulars. The said Act also provided penalties in

29

Section 10 for non-registration of the Waqf. It is submitted that

necessity for registration was also reinforced by subsequent Acts

like the Bengal Wakf Act, 1923, which for the first time

introduced the term “Waqf by User”.

46. Shri Mehta, submitted that post-independence, the

Parliament enacted the Muslim Wakfs Act, 1954

8. It is submitted

that a perusal of scheme of 1954 Act shows that it also provided

for mandatory registration. The learned Solicitor General further

submitted that noticing the menace of deliberate non -

registration by several Waqfs, the Wakf Enquiry Committee was

appointed by the Central Government in the year 1969-70. It is

submitted that the said Committee consisted of three eminent

persons from the Muslim community and it also considered the

result of wilful non-registration of the Waqfs and recommended

enactment of a provision prohibiting a suit to be filed on behalf

of a Waqf unless the said Waqf was registered. Accordingly,

Section 55E was added to the 1954 Act by Wakf (Amendment)

8

Hereinafter referred to as “1954 Act”.

30

Act, 1984. It is submitted that though the said 1984 Amendment

was made to the 1954 Act, the same was never given effect to.

47. The learned Solicitor General further submitted that in

order to further streamline the administration of the Waqfs, the

Parliament enacted the Waqf Act, 1995. In the said Act also,

Section 36, in detail, provided for registration and its procedure.

Shri Mehta, therefore, submitted that the amendment by way of

which the proviso to Section 3(r) has been added does not, in any

way, fall foul of the object of the Original Waqf Act.

48. Shri Mehta further submitted that Sajjadanashin is

different from Mutawalli. It is submitted that it is Sajjadanashin

who undertakes religious activities concerned with the Waqf.

However, Mutawallis are only concerned with the administrative

activities of the Waqf, and their functions have no bearing on the

religious activities. It is, therefore, submitted that the impugned

amendments are not violative of any of the rights guaranteed

under Article 25 and 26 of the Constitution.

49. Learned Solicitor General submitted that insofar as the

contention regarding provisions for removal of Mutawallis is

31

concerned, the said cannot be said to be discriminatory. Further,

Solicitor General submitted that similar provisions can be found

in various acts concerning removal of Mathadipatis. To illustrate,

the learned Solicitor General refers to the provisions related to

removal of Mathadipatis in the Andhra Pradesh Charitable and

Hindu Religious Institutions and Endowments Act, 1987, and the

Telangana Charitable and Hindu Religious Institutions and

Endowments Act, 1987.

50. In reply to the challenge to Section 3D of the Amended

Waqf Act, the learned Solicitor General submitted that the

Archaeological Survey of India

9 had made submissions before

the JPC pointing out the difficulties with regard to protected

monuments which are notified as Waqf properties. It was stated

by the ASI that the Waqf Board restricted ASI from carrying out

the survey activities in such properties. ASI had also stated that

various instances where Waqf authorities had carried out several

additions and alterations in the original structure of the

protected monuments which adversely hampered the

9

Hereinafter referred to as “ASI”.

32

authenticity and integrity of the protected monuments. It is,

therefore, submitted that Ministry of Culture had proposed

insertion of Section 3D. It is further stated that sub-section (6)

of Section 5 and Section 16 of the Ancient Monuments and

Archaeological Sites and Remains Act, 1958, itself protects the

rights of the persons to use any of the protected monuments for

customary religious observances. It is, therefore, submitted that

the only restriction now is that by way of Section 3D of the

Amended Waqf Act, the protected monuments cannot be used

for any purposes inconsistent with the provisions of the 1958

Ancient Monuments Act.

51. Insofar as the challenge to Section 3E of the Amended

Waqf Act is concerned, the learned Solicitor General has

submitted that the Scheduled Tribes are recognized as a distinct

class requiring special protection, especially with regard to land

ownership. He submitted that there are various statutes which

impose restrictions on the transfer of land belonging to

Scheduled Tribes to non-tribals. He further submitted that the

Fifth and Sixth Schedules of the Constitution are pre-existing

33

constitutional classifications embedded in the Constitution

itself.

52. The learned Solicitor General submitted that Article 29

of the Constitution puts an obligation on the State to protect the

language, script and culture of citizens. It is submitted that the

cultural and economic identity of the Scheduled Tribes is

intrinsically tied to the land held by them and therefore, the

State has a constitutional obligation to safeguard their property

rights. The learned Solicitor General relied on the judgments of

this Court in the cases of Amrendra Pratap Singh v. Tej

Bahadur Prajapati and Others

10, P. Rami Reddy and Others

v. State of Andhra Pradesh and Others

11, R. Chandevarappa

and Others v. State of Karnataka and Others

12 and

Lingappa Pochanna Appelwar v. State of Maharashtra and

Another

13.

53. The learned Solicitor General submitted that the JPC,

after considering peculiar cases of the citizens belonging to the

10

(2004) 10 SCC 65

11

(1988) 3 SCC 433

12

(1995) 6 SCC 309

13

(1985) 1 SCC 479

34

Scheduled Tribes and particularly the constitutional protection

granted to them under the Fifth and Sixth Schedules of the

Constitution, recommended taking appropriate legislative

measures to ensure protection of Scheduled Areas and Tribal

Areas.

54. Insofar as deletion of Section 104 of the Original Waqf

Act is concerned, the learned Solicitor General submitted that by

virtue of the amendment in the definition of “Waqf” under

Section 3(r) of the Original Waqf Act, only a person practicing

Islam for at least five years and having ownership of such

property can create a waqf. Since in view of the amendment to

Section 3(r), non-Muslims cannot create a waqf, the provision

under Section 104 of the Original Waqf Act enabling non-

Muslims to create a waqf was deleted as a consequence in order

to avoid conflicting provisions under the Act. It is further

submitted that the said provision was also considered by the JPC

in detail and the JPC concurred with the opinion of the Ministry

of Minority Affairs finding it in congruence with the original

legislative intent post-independence as well as in agreement with

the proposed definition of waqf.

35

55. Insofar as the challenge to the amendment to Section

107 of the Original Waqf Act is concerned, Shri Mehta submitted

that the amendment is prospective in nature and would not

apply to the pending cases. It is submitted that the question of

applicability of Section 107 of the Original Waqf Act to the

pending cases was specifically considered by the JPC and the

JPC recorded the assurance of the Ministry of Minority Affairs

that the said provision would apply only with prospective effect.

The learned Solicitor General submitted that in order to address

the concern of various stakeholders with regard to applicability

of the Limitation Act, 1963, to pending cases, the JPC redrafted

Section 107 of the Original Waqf Act to the present form. The

learned Solicitor General further submitted that the applicability

of the Limitation Act, 1963, aims to reduce litigation and simplify

the process of recovering waqf properties.

56. Insofar as Section 108 of the Original Waqf Act is

concerned, the learned Solicitor General submitted that the

concept of evacuee property as it existed under the

Administration of Evacuee Property Act, 1950, has been repealed.

36

57. Shri Rakesh Dwivedi, learned Senior Counsel

appearing on behalf of the State of Rajasthan submitted that

“Waqf by User” was initially introduced by Privy Council in the

case of Court of Wards for the Property of Makhdum Hassan

Bakhsh v. Ilahi Bakhsh and Others

14. He submitted that, in

the said case, the respondents therein had contended that even

if no express dedication of the land could be proved the

continuous use of the land for the purpose of burial showed that

it had become “Waqf by User”. He submitted that Their Lordships

of the Privy Council agreed with the respondents while

dismissing the appeal that the land in suit forms part of a

graveyard set apart for the Mussulman community, and that “by

user” if not by dedication the land is waqf. He, therefore,

submitted that “Waqf by User” was only an application of adverse

possession doctrine and not a concept rooted in Islamic theology.

58. Relying on Khazan Chand and Others v. State of

Jammu and Kashmir and Others

15, Shri Dwivedi submitted

that the Constitution has a federal structure. He, therefore,

14

1912 SCC OnLine PC 45

15

(1984) 2 SCC 456

37

submitted that there can be no comparison of a Parliamentary

law with certain State laws on Hindu religious endowments.

59. Shri Ranjit Kumar learned Senior Counsel appearing

on behalf of the State of Haryana and Adivasi Aadim Samajik

Sanstha submitted that the freedom to manage religious affairs

and to administer property in connection thereof has to be in

accordance with law. It is submitted that such freedom will have

to be exercised only in accordance with the provisions enacted

under the statute. He, therefore, submitted that all the

enactments governing waqf property, including the impugned

Act, are in accordance with the provisions of Article 26(d) of the

Constitution.

60. Shri Ranjit Kumar further submitted that a reading of

paragraph 176 of the Treatise “Principles of Mahomedan Law

(20

th Edition)” by Mulla would show that only an “owner” of a

property can create a waqf. It is submitted that a property

encroached upon by a person cannot be declared as a waqf.

61. Shri Ranjit Kumar, thereafter, referring to Key Quranic

Verses specifically by Surah Al-Baqarah, submitted that the very

38

concept of creation of waqf is based on charity i.e., to spend one’s

own wealth in the way of Allah. He submitted that the principle

behind the establishment of a waqf is redistribution of wealth by

giving one’s wealth to those in need, to those who ask and to

those who are deprived. It is, therefore, submitted that it is clear

that unless one owns a property, a waqf cannot be created and

certainly never by encroachment.

62. Shri Ranjit Kumar further submitted that under the

provisions of Section 40 of the Original Waqf Act, an inquiry with

regard to the question as to whether the property is a waqf

property or not was vested with the Board. However, taking into

consideration that the said power was misused by the Board,

Section 40 of the Original Waqf Act has been deleted by Section

23 of the impugned Act, and the power is now solely vested with

the Tribunal which can conduct an inquiry under Section 83 of

the Amended Waqf Act.

63. Shri Ranjit Kumar further submitted that till the year

2013, a waqf could be created only by a Muslim and not by a

non-Muslim. It is submitted that the Wakf (Amendment) Act

39

2013, however, permitted a non-Muslim to create a waqf which

has now been done away with by bringing an amendment to

Section 3(r) of the Original Waqf Act. As a natural corollary, it is

submitted that, by way of the impugned Act, Section 104 of the

Original Waqf Act has been deleted so as to bring the provisions

of the Act in conformity with the amended Section 3(r).

64. Shri Gopal Sankaranarayanan, learned Senior Counsel

submitted that in the State of Telangana itself, more than five

thousand properties owned by the Government have been

encroached upon on the premise of them being “Waqf by User”.

65. Shri S. Guru Krishna Kumar, learned Senior Counsel

submitted that the provisions of Sections 96 and 97 of the

Original Waqf Act would reveal that the Act and any amendment

thereto have been enacted with the purpose of only controlling

the “secular activities” of auqaf and the Act in no way interferes

with the religious activities to be carried out by the auqaf. He

submitted that a comparison between Section 23 and Section 38

of the Amended Waqf Act would reveal that whereas the Chief

Executive Officer of the Board appointed under Section 23 of the

40

Amended Waqf Act does not have direct control in the

administration of waqf, it is the Executive Officer appointed by

the Board under Section 38 of the Amended Waqf Act who has

direct control over the waqf. It is submitted that a person to be

appointed as an Executive Officer under Section 38 of the

Amended Waqf Act is required to be a person professing Islam.

It is, therefore, submitted that the contention of the petitioners

that a person not professing Islam would be interfering with the

management of a particular waqf is without substance.

iii. Rejoinder

66. In rejoinder, Shri Kapil Sibal, learned Senior Counsel,

submitted that for considering the constitutional validity of the

provisions of the statute, the provisions of the statute will have

to be read as it is. It is submitted that neither the affidavit of the

Central Government nor its submissions could be taken into

consideration to add words in the text of the statute which are

not there. In that light, the learned Senior Counsel submitted

that a plain reading of Section 3C of the Amended Waqf Act

would show that it is ex-facie arbitrary inasmuch as no

41

procedure is prescribed for determining the question as to

whether the property in question is a Government property or

not. He submitted that the failure by the State Governments in

conducting surveys and not registering the waqfs as per Section

4 of the Original Waqf Act cannot be permitted to act to the

prejudice of the waqfs by user. He submitted that the concept of

“Waqf by User” has been recognized by this Court in the case of

Syed Mohd. Salie Labbai (Dead) By LRs and Others v. Mohd.

Hanifa (Dead) By LRs and Others

16. Shri Sibal reiterated that

Sections 3D and 3E of the Amended Waqf Act were not part of

the original bill but were introduced for the first time in

Parliament. He further submitted that Section 96 of the

Amended Waqf Act permits the Central Government to directly

interfere with the affairs of the auqaf. Shri Sibal, therefore,

strenuously urged that this is a fit case where all the parameters

for grant of interim relief are made out and the Court should

interfere to stay the operation of the impugned Act.

16

(1976) 4 SCC 780

42

67. Dr. Rajeev Dhavan, learned Senior Counsel submitted

that charity is one of the five tenets of Islam. He submitted that

though charity is one of the essential characteristics of Islam, it

is not so with any other religion. He, therefore, submitted that

the impugned Act which permits the State to interfere with the

religious freedom of persons professing Islamic religion is not

sustainable in law.

68. Dr. Singhvi submitted that the concept of “Waqf by

User” has been recognized judicially since the 1912 judgment of

the Privy Council in the case of Ilahi Bakhsh (supra) and even

recently by a Constitution Bench judgment of this Court in the

case of M. Siddiq (Dead) Through Legal Representatives

(Ram Janmabhumi Temple Case) (supra). He further

submitted that Section 36 of the Amended Waqf Act which

requires registration creates an anomalous situation. He

submitted that whereas under sub-section (1) of Section 36 of

the Amended Waqf Act, all the waqfs are required to be

registered, sub-section (7A) thereof provides that when the

Collector in his report mentions that the property is wholly or in

part, either in dispute or is a Government property, the waqf in

43

relation to such part of property cannot be registered. He,

therefore, submitted that the Collector is empowered to stop the

registration of a waqf by exercising powers vested in him. He

further submitted sub-section (10) of Section 36 of the Amended

Waqf Act bars any remedy in respect of unregistered waqf

thereby creating an anomalous situation.

69. Dr. Singhvi lastly submitted that four High Courts have

held that the lack of registration does not affect the original

character of the waqf. To buttress his submission the learned

Senior Counsel relied on the judgments in the cases of

Khudawand Haiyul Qaiyum v. State of U.P. and Others

17,

Mohammed Gho use v. Karnataka Board of Wa kfs

18,

Muneerul Islam Sangham and Others v. Valiya Peedikakkal

Kunhamu and Another

19 and S. Manikya Reddy v. The A.P.

State Wakf Board, Rep. by its Chief Executive Officer,

Hyderabad and Another

20.

17

2013 : AHC : 89349 (Second Appeal No.2471 of 1978)

18

1985 SCC OnLine Kar 144

19

2004 SCC OnLine Ker 54

20

2014 SCC OnLine AP 336

44

70. Shri Huzefa Ahmadi, learned Senior Counsel

submitted that Section 3E of the Amended Waqf Act does not

only affect dedication of any land in Scheduled or Tribal areas in

future but also affects the dedications made in past. He

submitted that the said Section having retrospective application

is violative of the fundamental rights of the persons professing

Islam as provided under Articles 25 and 26 of the Constitution.

It is further submitted that the said provision is enacted only

insofar as Muslims are concerned and therefore, it is directly hit

by Article 15(1) of the Constitution.

71. The learned Senior Counsel reiterated that the three

prongs for grant of interim relief i.e., prima facie case, balance of

convenience and irreparable injury having been satisfied a clear

case for stay of the impugned Act is made out.

DISCUSSION AND ANALYSIS

72. Having heard the parties on the question as to whether

the amended provisions, as enacted by the impugned Act, should

be stayed or not pending the final hearing of the present batch

45

of matters, we proceed to firstly analyze the extant position of

law on the subject.

i. Scope of Grant of Interim Relief

73. By now, it is a settled principle of law that the courts

should be very slow in granting interim relief by way of staying

the provisions of an enactment. Interim relief of such a nature

can be granted in rare and exceptional cases; where parties are

in a position to point out that either the legislature which

enacted the law lacks legislative competence or the provisions

are ex-facie in violation of any of the provisions in Part III of the

Constitution or constitutional principles or is manifestly

arbitrary. Reference in this respect can be made to the following

landmark judgments of this Court.

74. Right from the 1950 Constitution Bench judgment of

this Court in the case of Charanjit Lal Chowdhury v. Union of

India and Others

21, the courts have accepted the legal position

that presumption is always in favour of constitutionality of an

enactment and the burden is upon him who attacks it to show

21

(1950) SCC 833

46

that there has been a clear transgression of the constitutional

principles. It is an established position that it must be presumed

that legislature understands and correctly appreciates the needs

of its own people, that its laws are directed to problems made

manifest by experience, and that its discriminations are based

upon adequate grounds.

75. Thereafter, a Constitution Bench of this Court in the

case of The State of Bombay and Another v. F.N. Balsara

22,

after referring to the judgment in the case of Charanjit Lal

Chowdhury (supra), has laid down the principles in the

following terms:

“49. ……..

(1) The presumption is always in favour of the

constitutionality of an enactment, since it must be

assumed that the legislature understands and

correctly appreciates the needs of its own people, that

its laws are directed to problems made manifest by

experience and its discriminations are based on

adequate grounds.

(2) The presumption may be rebutted in certain cases

by showing that on the face of the statute, there is no

classification at all and no difference peculiar to any

individual or class and not applicable to any other

22

[1951] SCR 682

47

individual or class, and yet the law hits only a

particular individual or class.

(3) The principle of equality does not mean that every

law must have universal application for all persons

who are not by nature, attainment or circumstances

in the same position, and the varying needs of

different classes of persons often require separate

treatment.

(4) The principle does not take away from the State

the power of classifying persons for legitimate

purposes.

(5) Every classification is in some degree likely to

produce some inequality, and mere production of

inequality is not enough.

(6) If a law deals equally with members of a well-

defined class, it is not obnoxious and it is not open

to the charge of denial of equal protection on the

ground that it has no application to other persons.

(7) While reasonable classification is permissible,

such classification must be based upon some real

and substantial distinction bearing a reasonable and

just relation to the object sought to be attained, and

the classification cannot be made arbitrarily and

without any substantial basis.”

76. Again, in the case of Shri Ram Krishna Dalmia v.

Shri Justice S.R. Tendolkar and Others

23, a Constitution

Bench of this Court reiterated the position as under:

23

1958 SCC OnLine SC 6 : [1959] SCR 279

48

“11. …..The principle enunciated above has been

consistently adopted and applied in subsequent

cases. The decisions of this Court further establish—

(a) that a law may be constitutional even

though it relates to a single individual if,

on account of some special circumstances

or reasons applicable to him and not

applicable to others, that single individual

may be treated as a class by himself;

(b) that there is always a presumption in

favour of the constitutionality of an

enactment and the burden is upon him

who attacks it to show that there has been

a clear transgression of the constitutional

principles;

(c) that it must be presumed that the

legislature understands and correctly

appreciates the need of its own people,

that its laws are directed to problems

made manifest by experience and that its

discriminations are based on adequate

grounds;

(d) that the legislature is free to recognise

degrees of harm and may confine its

restrictions to those cases where the need

is deemed to be the clearest;

(e) that in order to sustain the

presumption of constitutionality the court

may take into consideration matters of

common knowledge, matters of common

report, the history of the times and may

assume every state of facts which can be

conceived existing at the time of

legislation; and

(f) that while good faith and knowledge of

the existing conditions on the part of a

legislature are to be presumed, if there is

49

nothing on the face of the law or the

surrounding circumstances brought to the

notice of the court on which the

classification may reasonably be regarded

as based, the presumption of

constitutionality cannot be carried to the

extent of always holding that there must

be some undisclosed and un -known

reasons for subjecting certain individuals

or corporations to hostile or

discriminating legislation.

The above principles will have to be constantly borne

in mind by the court when it is called upon to adjudge

the constitutionality of any particular law attacked

as discriminatory and violative of the equal

protection of the laws.”

77. Another Constitution Bench of this Court, thereafter, in

the case of Mohd. Hanif Quareshi and Others v. The State of

Bihar

24, has observed thus:

“15. …….The pronouncements of this Court further

establish, amongst other things, that there is always

a presumption in favour of the constitutionality of an

enactment and that the burden is upon him, who

attacks it, to show that there has been a clear

violation of the constitutional principles. The courts,

it is accepted, must presume that the legislature

understands and correctly appreciates the needs of

its own people, that its laws are directed to problems

made manifest by experience and that its

discriminations are based on adequate grounds. It

must be borne in mind that the legislature is free to

recognise degrees of harm and may confine its

24

1957 SCC OnLine SC 17 : [1959] SCR 629

50

restrictions to those cases where the need is deemed

to be the clearest and finally that in order to sustain

the presumption of constitutionality the Court may

take into consideration matters of common

knowledge, matters of common report, the history of

the times and may assume every state of facts which

can be conceived existing at the time of

legislation…..”

78. In the case of Hamdard Dawakhana (Wakf) Lal

Kuan, Delhi and Another v. Union of India and Others

25, after

referring to three earlier judgments in the cases of The Bengal

Immunity Company Limited v. The State of Bihar and

Others

26, R.M.D. Chamarbaugwalla and Another v. Union of

India and Another

27 and Mahant Moti Das and Others v. S.P.

Sahi, The Special Officer In Charge of Hindu Religious Trust

and Others

28, a Constitution Bench of this Court observed that

while considering the constitutionality of an enactment, it is

necessary to consider its true nature and character i.e., its

subject matter, the area in which it is intended to operate, its

purport and the intent. It has further been held that in order to

25

1959 SCC OnLine SC 38

26

1955 SCC OnLine SC 2

27

1957 SCC OnLine SC 11 : [1957] SCR 930

28

1959 SCC OnLine SC 66

51

do so, it is legitimate to take into consideration all the factors

such as history of the legislation, the purpose thereof, the

surrounding circumstances and conditions, the mischief which

it intended to suppress, the remedy for the disease which the

legislature resolved to cure and the true reason for the remedy.

79. This legal position has been consistently reiterated by

this Court in a catena of judgments. Recently also, a Three-Judge

Bench of this Court in the case of Dr. Jaya Thakur v. Union of

India and Others

29, to which one of us (Gavai, J. as he then

was) was a Member, has observed thus:

“70. It could thus be seen that this Court has held

that the statute enacted by Parliament or a State

Legislature cannot be declared unconstitutional

lightly. To do so, the Court must be able to hold

beyond any iota of doubt that the violation of the

constitutional provisions was so glaring that the

legislative provision under challenge cannot

stand. It has been held that unless there is

flagrant violation of the constitutional

provisions, on the law made by Parliament or a

State Legislature cannot be declared bad.

71. It has been the consistent view of this Court that

legislative enactment can be struck down only on two

grounds. Firstly, that the appropriate legislature

does not have the competence to make the law; and

secondly, that it takes away or abridges any of the

29

(2023) 10 SCC 276

52

fundamental rights enumerated in Part III of the

Constitution or any other constitutional provisions.

It has been held that no enactment can be struck

down by just saying that it is arbitrary or

unreasonable. Some or the other constitutional

infirmity has to be found before invalidating an Act.

It has been held that Parliament and the legislatures,

composed as they are of the representatives of the

people, are supposed to know and be aware of the

needs of the people and what is good and bad for

them. The court cannot sit in judgment over their

wisdom.

72. It has been held by this Court that there is

one and only one ground for declaring an Act of

the legislature or a provision in the Act to be

invalid, and that is if it clearly violates some

provision of the Constitution in so evident a

manner as to leave no manner of doubt. It has

further been held that if two views are possible,

one making the statute constitutional and the

other making it unconstitutional, the former view

must always be preferred. It has been held that

the Court must make every effort to uphold the

constitutional validity of a statute, even if that

requires giving a strained construction or

narrowing down its scope.

73. It has consistently been held that there is always

a presumption in favour of constitutionality, and a

law will not be declared unconstitutional unless the

case is so clear as to be free from doubt. It has been

held that if the law which is passed is within the

scope of the power conferred on a legislature and

violates no restrictions on that power, the law must

be upheld whatever a court may think of it.

74. It could thus be seen that the challenge to the

legislative Act would be sustainable only if it is

established that the legislature concerned had no

legislative competence to enact on the subject it

53

has enacted. The other ground on which the

validity can be challenged is that such an

enactment is in contravention of any of the

fundamental rights stipulated in Part III of the

Constitution or any other provision of the

Constitution. Another ground as could be culled

out from the recent judgments of this Court is

that the validity of the legislative Act can be

challenged on the ground of manifest

arbitrariness. However, while doing so, it will

have to be remembered that the presumption is

in favour of the constitutionality of a legislative

enactment.

75. In the present case, it is nobody's case that

Parliament did not have power to enact on the

subject on which the aforesaid Amendments have

been enacted. As such, the said ground is not

available to the petitioners.”

[emphasis supplied]

80. In the background of this categorical position, we will

have to consider as to whether the petitioners have made out a

strong case to show that the amendments brought into the Old

Waqf Act by the impugned Act are beyond the legislative

competence of the Parliament or ex-facie point out violation of

any of the provisions in Part III of the Constitution or

constitutional principles or is manifestly arbitrary.

54

ii. Legislative History of Waqf Enactments

81. For appreciating the provisions of the impugned Act, we

will have to consider the legislative history of various enactments

regulating and governing the creation of waqfs.

a. Mussalman Wakf Act, 1923

82. The first of such enactments was Mussalman Wakf Act,

1923. It will be relevant to refer to the Statement of Objects and

Reasons of the said Act, which reads thus:

“Statement of Objects and Reasons – The object of

the present Bill is sufficiently indicated by the

Preamble to the Bill. For several years passed,

there has been a growing feeling amongst the

Mahomedan community, throughout the country

that the numerous endowments which have been

or are being made daily by pious and public -

spirited Mahomedans are being wasted or

systematically misappropriated by those into

whose hands the trust may have come in the

course of time. Instances of such misuse of trust

property are unfortunately so very common that

a wakf endowment has now come to be regarded

by the public as only a clever device to tie up

property in order to defeat creditors and generally

to evade the law under the cloak of a plausible

dedication to the Almighty. In some case, the

mutawallis are persons who are utterly unfit to carry

on the administration of wakf and who, by their

moral delinquencies bring discredit not merely on the

endowment but on the community itself. It is

believed that the feeling is unanimous that some

55

step should be taken in order that incompetent

and unscrupulous mutawallis may be checked in

their career of waste and mismanagement, and

that the endowments themselves may be

appropriated to the purposes for which they had

been originally dedicated.

In some cases, difficulties have arisen in finding

out whether any particular properties are really

subject to wakf or not. There are numerous wakf

properties all over the country unknown to the

public which the mutawallis are treating their

own private property and dealing with in any way

they think fit or necessary. It, therefore, seems

that there should be a system of compulsory

registration requiring a mutawalli to notify to

some responsible officer not merely about the

fact of the wakf, of which he is the mutawalli, but

also the nature and extent and other incidents of

the endowment. Further, even where a wakf is

well-known and mutawalli is obviously thoroughly

incompetent to carry on his duties, the public

find a difficulty in instituting suits to remove him

from his post by reason of the cumbrous

procedure laid down in the Code of Civil

Procedure. It is with a view to facilitate the

institution of such suits that a provision has been

made in the Bill. Lastly, there appears to be a

general consensus of opinion amongst the

Mahomedans throughout the country that there

should be some responsible officer, who may go

about and find for himself whether the various

wakf properties scattered throughout the country

are being properly managed or not. It is not

intended that Government should be called upon to

bear the burden of appointing such an officer or his

staff, and a provision has, therefore, been made in

the Bill authorizing the Central Committee (to be

appointed in pursuance of the provisions of the Bill)

to levy a rateable contribution from the mutawallis

56

for the purpose of meeting the cost on entertaining

such an officer and his staff.”

[emphasis supplied]

83. It can thus be seen that since the menace of

mismanagement of the wakf properties was noticed by

legislature, an enactment was found to be necessary as early as

in the year 1923. It was noticed that the endowments made by

pious and public-spirited Mahomedans were being wasted or

systematically misappropriated by those into whose hands the

trust may have come in the course of time.

84. It was also noticed that the wakf endowment came to

be regarded by the public as a “clever device” to tie up property

in order to defeat creditors and generally to evade the law under

the cloak of a plausible dedication to the Almighty. A system of

compulsory registration not merely about the fact of the waqf but

also the nature, extent and other incidents of the wakf was found

to be necessary even at that point of time. It was also found, at

that time, that it was necessary to appoint a responsible officer,

who may go about and find out for himself whether the various

57

wakf properties scattered throughout the country were being

properly managed or not.

85. A perusal of the 1923 Act would show that various

provisions were made in the said Act qua obligation to furnish

particulars relating to wakf

30, publication of particulars and

requisition of further particulars

31, statement of accounts

32,

audit of account

33 and verification

34. Not only that, a penalty was

also provided in Section 10 of the 1923 Act for a person who failed

to comply with the statutory requirements of the Act.

b. Bengal Wakf Act, 1934

86. It is to be noted that Section 6(10) of the Bengal Wakf

Act, 1934 recognized the concept of “Waqf by User”. It will be

appropriate to reproduce the same:

“6. …..

(10). “wakf” means the permanent dedication by a

person professing Islam of any movable or immovable

property for any purpose recognized by the Islamic

law as pious, religious or charitable and includes a

wakf by user; and “wakif” means any person making

such dedication;”

30

Section 3 of 1923 Act

31

Section 4 of 1923 Act

32

Section 5 of 1923 Act

33

Section 6 of 1923 Act

34

Section 8 of 1923 Act

58

c. Wakf Act, 1954

87. Post independence, the Parliament enacted the Wakf

Act, 1954. The concept of “Waqf by User” was statutorily

recognized by Section 3(l)(i) of the 1954 Act. Under Section 4 of

the 1954 Act, the State Government was required to appoint a

Commissioner of Wakfs who was required to conduct an inquiry

and submit a report in respect of wakfs existing at the date of the

commencement of the said Act , giving the particulars as

prescribed under the provisions of the said Act. The State

Government under sub-section (6) of Section 4 of the 1954 Act

was also empowered to direct the Commissioner to make a

second or subsequent survey of wakf properties in the State.

88. Under Section 5 of the 1954 Act, on receipt of a report

from the Commissioner, the State Government was required to

forward the same to the Board. Thereafter, the Board was

required to examine the report and publish in the Official

Gazette, a list of wakfs in the State and containing such

particulars as were prescribed.

59

89. Sub-section (1) of Section 6 of the 1954 Act provided for

determination of disputes regarding waqfs by a civil court of the

competent jurisdiction. Under sub-section (4) of Section 6 of the

said Act, the list of wakfs published under sub-section (2) of

Section 5 thereof, shall unless it was modified in pursuance of a

decision of the civil court under sub-section (1), be final and

conclusive.

90. Section 25 of the 1954 Act also provided for registration

of every waqf at the office of the Wakf Commissioner. A detailed

procedure for making an application for registration and the

inquiry to be conducted by the Wakf Commissioner in respect of

genuineness and validity of the application, giving notice of the

application to the person administering the wakf property, was

prescribed under the said provision. Sub-section (8) of Section 25

of the 1954 Act mandated making of the application for

registration of the wakfs created before the commencement of the

said Act within a period of 3 months from the date of

commencement of the said Act. Insofar as wakfs created after the

commencement of the said Act are concerned, a period of 3

months was prescribed from the date of creation of the wakfs.

60

91. Under Section 26 of the 1954 Act, a register of wakfs

was required to be maintained by the Wakf Commissioner.

92. Under Section 27 of the 1954 Act, the Board was

required to collect information regarding any property which it

has reason to believe to be wakf property. It was also empowered

to hold inquiry where it had reason to believe that any property

or any trust or any society registered in pursuance of the Indian

Trusts Act, 1882, or under the Societies Registration Act, 1860, or

under any other Act, was a wakf property. It was further provided

that, if after an inquiry, it was found that such a property is wakf

property, it was empowered to call upon the trust or the society,

either to register such property under the said Act as wakf

property or show cause why such property should not be so

registered.

93. Section 28 of the 1954 Act empowered the Wakf

Commissioner to direct a Mutawalli to apply for the registration

of a wakf or to supply any information regarding a wakf, or to

himself cause the wakf to be registered and at any time amend

the register of waqfs.

61

94. Section 41 of the 1954 Act provided penalties for non-

compliance by a Mutawalli with regard to the provisions of the

said Act.

d. Wakf Enquiry Committee & Wakf (Amendment)

Act, 1984

95. It is further to be noted that though the 1954 Act

provided for mandatory registration of all Waqfs, several waqfs

had not registered themselves. As a result, the Central

Government having taken note of the same, appointed a Wakf

Enquiry Committee consisting of the following three eminent

persons:

(i) Sayeed Ahmad - Chairman

(ii) M.H. Mohsin - Member

(iii) Ishaq

Later Mr. Zulfikar Alik Khan replaced M.H. Mohsin.

96. The final report of the Wakf Enquiry Committee was

submitted in the year 1976. It will be relevant to refer to the

following observations of the report submitted by the Wakf

Enquiry Committee:

62

“Bar to hear or decide suits

(i) Deliberate concealing of wakfs and wilful failure

to have them registered is a deeply prevalent

malady affecting the administration of wakfs.

Attaching the highest importance to this matter,

we have separately provided for imprisonment in

such cases as a punitive measure. We consider that

a carrot-and-stick policy is also required in the

matter; dangling the carrot wherever possible and

using the stick whenever it becomes necessary. We

consider that, in the implementation of this policy,

we have a very salutary provision under Section 31

of the Bombay Public Trusts Act 29 of 1950, which

bars the hearing of any suits in respect of a public

trust which has not been registered under the Act.

We consider that a similar provision is necessary

in the Central Wakf Act of 1954, and no Mutawalli

who has failed to have wakfs registered as

required under the Central Wakf Act of 1954

should be provided with the facility of enforcing

any right in a court of law unless he has duly

registered his wakf as required under the Act. We,

therefore, recommend that a fresh Section 55A

may be added to the Central Wakf Act of 1954 on

the following lines:

“(a) 55(1) No suit to enforce a right on

behalf of a wakf which has not been

registered under this Act shall be heard

or decided in any court of law or

tribunal.”

“(2) The provisions of sub-section (1)

shall apply to a claim of set-off or other

proceedings to enforce a right on behalf

of such wakf.””

[emphasis supplied]

63

97. It can thus be seen that the said Committee noticed

that there were instances of deliberate concealing of wakfs and

wilful failure to have them registered. It was observed that such

a malady, which was deeply prevalent, was affecting the

administration of wakfs. The Committee , therefore,

recommended imprisonment as a punitive measure for such non-

compliances. The Committee noticed that under the Bombay

Public Trusts Act, 1950, there was a provision which barred the

hearing of any suits in respect of a public trust which had not

been registered under the said Act. The Committee was of the

opinion that such a salutary provision was also necessary in the

1954 Act. As a matter of fact, in order to give effect to the said

recommendations of the Wakf Enquiry Committee, the 1954 Act

was sought to be amended by Wakf (Amendment) Act, 1984, by

inserting Section 55E, which reads thus:

“55E. (1) Notwithstanding anything contained in any

other law for the time being in force, no suit, appeal

or other legal proceeding for the enforcement of any

right on behalf of any wakf which has not been

registered in accordance with the provisions of this

Act, shall be instituted or commenced or heard, tried

or decided by any court after the commencement of

the Wakf (Amendment) Act, 1984, or where any such

suit, appeal or other legal proceeding had been

64

instituted or commenced before such

commencement, no such suit, appeal or other legal

proceeding shall be continued, heard, tried or

decided by any court after such commencement

unless such wakf has been registered, after such

commencement, in accordance with the provisions of

this Act.

(2) The provisions of sub-section (1) shall apply, as

far as may be, to the claim for set-off or any other

claim made on behalf of any wakf which has not been

registered in accordance with the provisions of this

Act.”

98. However, it is to be noted that the Wakf (Amendment)

Act, 1984, was not brought into effect.

99. Thereafter, the Parliament noticed that the actual

working of the 1954 Act had brought out many deficiencies in it

as also in the setup of Waqf Boards. From the introduction of the

Original Waqf Act, it can be seen that to remove the deficiencies,

the 1954 Act was amended in 1959, 1964, 1969 and thereafter

comprehensive amendments were made in 1984 based on the

recommendations of the Wakf Enquiry Committee. It can be seen

that a large number of persons from the Muslim community had

strongly opposed various provisions of the Wakf (Amendment)

Act, 1984 including Section 55E (as discussed previously).

65

Therefore, only after carefully considering the objections to

various provisions of the Wakf (Amendment) Act, 1984, and after

holding wide ranging discussions with the leaders of the Muslim

community, it was decided to bring in a new comprehensive Bill

on waqf matters incorporating the features of the 1954 Act and

such provisions of the Wakf (Amendment) Act, 1984, in respect of

which there was a near consensus. The cumulative result of the

process was the enactment of the 1995 Waqf Act, which we have

been referring to as the Original Waqf Act.

e. Waqf Act, 1995

100. A perusal of the Statement of Objects and Reasons of

the Original Waqf Act would also show that there were instances

of misuse of waqf properties either with or without the

connivance of the Mutawallis. It was, therefore, proposed to

incorporate in the Bill a provision so that the alienation of Waqf

properties would not be easy. It will be relevant to refer to Section

3(r) of the Original Waqf Act as it stood before the Wakf

(Amendment) Act, 2013:

66

“3. Definitions. –

(r) “wakf” means the permanent dedication by a

person professing Islam, of any movable or

immovable property for any purpose recognized by

the Muslim law as pious, religious or charitable and

includes –

(i) a wakf by user but such wakf shall not

cease to be a wakf by reason only of the

user having ceased irrespective of the

period of such cesser;

(ii) “grants”, including mashrut -ul-

khidmat for any purpose recognized by the

Muslim law as pious, religious or

charitable; and;

(iii) a wakf-alal-aulad to the extent to

which the property is dedicated for any

purpose recognized by Muslim law as

pious, religious or charitable,

and “wakif” means any person making such

dedication;”

101. It can thus be seen that the definition of “wakf” also

included a “Wakf by User”. It can further be seen that such a

waqf would not cease to be a waqf by reason only of the user

having ceased irrespective of the period of such cesser.

102. Section 4 of the Original Waqf Act provided for

preliminary survey of auqaf.

103. Section 5 of the Original Waqf Act provided for

publication of the list of auqaf. It also provided that the revenue

67

authorities shall include the list of auqaf referred to in sub-

section (2) thereof, while updating the land record and taking into

consideration the list of auqaf referred to in sub-section (2)

thereof, while deciding mutation in the land records.

104. Section 6 of the Original Waqf Act provided that if any

question arises whether a particular property specified as waqf

property in the list of auqaf is waqf property or not or whether a

waqf specified in such list is a Shia waqf or Sunni waqf, the Board

or Mutawalli of the waqf or any person aggrieved may institute a

suit in a Tribunal for the decision of the question and that the

decision of the Tribunal in respect of such matter shall be final.

105. Section 7 of the Original Waqf Act provided for the

power of Tribunal to determine disputes regarding auqaf.

106. Section 36 of the Original Waqf Act provided for

registration of a waqf. It also provided for the procedure to be

followed for registration of the waqf. It will be relevant to note that

certain amendments were also carried out to the provisions of

Section 36 of the Original Waqf Act by way of the Wakf

(Amendment) Act, 2013. However, it is to be noted that even under

68

the Original Waqf Act, it was provided that an application for

registration shall be made along with a description of the waqf

properties sufficient for the identification thereof amongst other

particulars.

107. Further, a perusal of sub-section (4) of Section 36 of the

Original Waqf Act would reveal that every application for

registration was required to be accompanied by a copy of the waqf

deed or if no such deed had been executed or a copy thereof could

not be obtained; the application was required to contain full

particulars, as far as they are known to the applicant, about the

origin, nature and objects of the waqf. It can thus be seen that

even in case of a “Waqf by User”, an application could have been

made for registration even if no waqf deed was executed by giving

the details, which were known to the applicant, about the origin,

nature and objects of the waqf.

108. Under sub-section (7) of Section 36 of the Original Waqf

Act, on receipt of an application for registration, the Board was

required to make an inquiry as it deemed fit with regard to the

genuineness and validity of the application and correctness of

69

any particulars therein. It was further provided that when the

application was made by any person other than the person

administering the waqf property, the Board, before registering the

waqf, was required to give notice of the application to the person

administering the waqf property and was further required to give

him a hearing if he desired to be heard.

109. It is to be noted that under sub-section (8) of Section 36

of the Original Waqf Act, every application for registration, in the

case of auqaf created before the commencement of the said Act,

was required to be made within 3 months from the date of

commencement and in case of auqaf created after such

commencement, within 3 months from the date of the creation of

the waqf. The proviso thereto enabled an application to be made

within a period of 3 months from the date of establishment of the

Board where there was no Board at the time of creation of the

waqf.

110. Under Section 32 of the Original Waqf Act, which

provided for the powers and functions of the Board, the Board

was inter-alia required to maintain a record containing

70

information relating to origin, income, object and beneficiaries for

which a waqf was created.

111. Under Section 40 of the Original Waqf Act, the Board

was empowered to collect information regarding any property

which it had reason to believe to be a waqf property and if any

question arises as to whether a particular property was a waqf

property or not, the said question could be decided by the Board

after making such inquiry as it deemed fit. It was further provided

that the decision of the Board subject to modification, if any, by

the Tribunal was to be final.

112. A provision similar to that made in sub-section (3) of

Section 27 of the 1954 Act with regard to a property of any trust

or society registered under the Indian Trusts Act, 1882, or under

the Societies Registration Act, 1860, or under any other Act, was

also made under sub-section (3) of Section 40 of the Original

Waqf Act. Further, a provision similar to Section 28 of the 1954

Act can be found in Section 41 of the Original Waqf Act with a

change that the Waqf Commissioner has been replaced with the

Board.

71

113. Section 61 of the Original Waqf Act provided for

penalties. It will be relevant to note that sub-section (2) of Section

61 of the Original Waqf Act provided for imprisonment of a

Mutawalli if he omitted or failed to, with a view to concealing the

existence of a waqf, apply for registration under the said Act in

the specified period or furnished any statement, return or

information to the Board, which he knows or has reason to

believe to be false, misleading, untrue or incorrect was liable to

be punished with imprisonment for a term which may extend to

six months and also with fine which may extend to fifteen

thousand rupees. This provision is in tune with the report of the

Wakf Enquiry Committee referred to hereinabove , which

recommended bringing a similar provision as existed in the

Bombay Public Trusts Act, 1950.

114. It is relevant to note that the Original Waqf Act also had

a provision by virtue of Section 87 which provided a bar on the

institution of any suit, appeal or other legal proceedings on behalf

of any waqf which had not been registered in accordance with the

provisions of the said Act. Again, this provision was on the lines

recommended by the Wakf Enquiry Committee and on the basis

72

of which Section 55E was sought to be brought into the statute

by Wakf (Amendment) Act, 1984. However, it is to be noted that

by way of Wakf (Amendment) Act, 2013, Section 87 of the Original

Waqf Act came to be deleted.

iii. Consideration of the provisions of the impugned Act

115. In this historical perspective, we will have to consider

the question as to whether the impugned Act deserves to be

stayed or not.

116. The scope of grant of interim stay of a statute or any of

its provision(s) has been crystalized in the Constitution Bench

judgments which we have already referred to hereinabove.

117. It has consistently been held that there is always a

presumption in favour of the constitutionality of an enactment

and the burden is upon him who attacks it to show that there

has been a clear transgression of the constitutional principles. It

is quite well settled that the legislature understands and correctly

appreciates the need of its own people, that its laws are directed

to problems made manifest by experience and that its

discrimination is based on adequate grounds . Equally, it is

73

settled that the legislature is free to recognize degrees of harm

and may confine its restrictions to those cases where the need is

deemed to be the clearest. It has also been held that in order to

sustain the presumption of constitutionality the court may take

into consideration matters of common knowledge, matters of

common report, the history of the times and may assume every

state of facts which can be conceived existing at the time of

legislation.

118. It has also been held that a statute enacted by

Parliament or a State Legislature cannot be declared

unconstitutional lightly. In doing so, the Court must be able to

hold beyond any iota of doubt that the violation of the

constitutional provisions was so glaring that the legislative

provision under challenge cannot stand. It has been held that

unless there is flagrant violation of the constitutional provisions,

the law made by Parliament or a State Legislature cannot be

declared invalid. It has also been held that in order to declare a

law unconstitutional, the Court has to come to a conclusion that

the violation of any of the provisions of the Constitution is so

evident that it leaves no manner of doubt.

74

119. The grounds on which a legislation can be declared

invalid is with regard to the legislative competence of legislature

or that such a legislation is in contravention of any of the

fundamental rights stipulated in Part III of the Constitution or

any other provision of the Constitution or that it is manifestly

arbitrary.

120. In the light of this legal position, we will have to examine

as to whether the petitioners have made out a strong prima facie

case to stay the entire statute i.e., the impugned Act.

121. For doing so, we will be required to consider the

legislative history right from 1923 up to the enactment of the

statute under challenge.

122. A perusal of the Statement of Objects and Reasons of

the Mussalman Wakf Act, 1923 would reveal that, for several

years passed, there had been a growing feeling amongst the

Mahomedan community, throughout the country , that the

numerous endowments which have been or are being made daily

by pious and public-spirited Mahomedans are being wasted or

75

systematically misappropriated by those into whose hands the

trust may have come in the course of time.

123. As early as in 1923, it was noticed that instances of

such misuse of trust property were unfortunately so very

common that a wakf endowment ha d now come to be regarded

by the public as only a clever device to tie up property in order to

defeat creditors and generally to evade the law under the cloak of

a plausible dedication to the Almighty. The legislature found that

some steps should be taken in order that incompetent and

unscrupulous Mutawallis may be checked in their career of waste

and mismanagement. Furter, as early as 1923, the legislature

found that it was necessary to have a system of compulsory

registration requiring a Mutawalli to notify to some responsible

officer not merely about the fact of the wakf, of which he is the

Mutawalli, but also the nature and extent and other incidents of

the endowment. It was also noticed that even where a wakf is

well-known and Mutawalli is obviously thoroughly incompetent

to carry on his duties, the public find a difficulty in instituting

suits to remove him from his post because of the cumbrous

procedure laid down in the Code of Civil Procedure.

76

124. It can further be seen that the provisions with regard to

compulsory requirement of registration of every waqf also

continued under the 1954 Act.

125. Finding that even the 1954 Act had not served the

purpose, the Central Government appointed a Wakf Enquiry

Committee consisting of three eminent persons and that too from

Muslim community. The said Committee found that a provision

similar to the one provided in Section 31 of the Bombay Public

Trusts Act, 1950 was required to be incorporated in the 1954 Act.

It recommended the insertion of a provision to the effect that no

Mutawalli who has failed to have wakfs registered as required

under the 1954 Act should be provided with the facility of

enforcing any right in a court of law unless he has duly registered

his wakf as required under the Act. It, therefore, recommended

insertion of Section 55A in the 1954 Act.

126. It is further to be noted that in order to give effect to the

recommendations of the Waqf Enquiry Committee, the 1954 Act

was sought to be amended by Wakf (Amendment) Act, 1984 by

77

inserting Section 55E, but, for various reasons, it could not be

brought into effect.

127. It is further to be noted that though the 1954 Act was

further amended in 1959, 1964 , 1969 and comprehensive

amendments were made thereafter in 1984 based on the

recommendations of the said Committee , however, a large

number of persons from the Muslim community opposed various

amendments sought to be brought by the Wakf (Amendment) Act,

1984 including the one by which Section 55E was brought into

the statute.

128. Coming next to the Original Waqf Act. Section 36

thereof provided for registration of a waqf. A perusal of sub-

section (4) of Section 36 of the Original Waqf Act would reveal

that every application for registration was required to be

accompanied by a copy of the waqf deed or if no such deed had

been executed or a copy thereof could not be obtained, then the

application was required to contain full particulars, as far as they

are known to the applicant, about the origin, nature and objects

of the waqf. It can thus be seen that even in case of a “Waqf by

78

User”, an application could have been made for registration even

if no waqf deed was executed by giving the details, which were

known to the applicant, about the origin, nature and objects of

the waqf.

129. It can further be seen that under sub-section (7) of

Section 36 of the Original Waqf Act, on receipt of an application

for registration, the Board was required to make an inquiry as it

deemed fit with regard to the genuineness and validity of the

application and correctness of any particulars therein.

130. It can further be seen that under sub-section (8) of

Section 36 of the Original Waqf Act, every application for

registration, in the case of auqaf created before the

commencement of the said Act, was required to be made within

3 months from the date of commencement and in case of auqaf

created after such commencement, within 3 months from the

date of the creation of the waqf. Insofar as the auqaf which were

already in existence, in view of the proviso thereto, an application

could have been made within a period of 3 months from the date

79

of establishment of the Board where there was no Board at the

time of creation of the waqf.

131. It is further to be noted that though the Original Waqf

Act provided a detailed procedure for registration, it also provided

under Section 87 a bar on the enforcement of rights on behalf of

unregistered waqfs. Though this provision, which provides a bar

on the rights on behalf of the unregistered trusts, was in

existence from 1995 till 2013, it was removed with effect from 1

st

November 2013.

a. Section 4(ix)(a) of the impugned Act

132. One of the sections which is sought to be challenged by

the petitioners is amendment to Section 3(r) of the Original Waqf

Act by virtue of Section 4(ix)(a) of the impugned Act. It would be

appropriate to refer to Section 3(r) of the Amended Waqf Act,

which reads thus:

“3. Definitions:

In this Act, unless the context otherwise requires,-

xxxx xxxx xxxx

(r) "waqf" means the permanent dedication by any

person showing or demonstrating that he is

practising Islam for at least five years, of any movable

80

or immovable property, having ownership of such

property and that there is no contrivance involved in

the dedication of such property, for any purpose

recognised by the Muslim law as pious, religious or

charitable and includes

….”

133. It is contended by the petitioners that the condition

which requires that a waqf can be created only by a person

showing or demonstrating that he is practicing Islam for at least

5 years is totally discriminatory and arbitrary. It is further

contended that the restriction which provides that only property

owned by such a person can be donated is also arbitrary. It is

lastly contended that the bar on dedication of any property which

is not owned by such a person is arbitrary.

134. We will first deal with the first part of the provision that

requires a person dedicating a property to show or demonstrate

that he is practicing Islam for at least 5 years.

135. Prima facie, we are of the view that such a provision

cannot be said to be arbitrary or discriminatory.

136. As discussed by us hereinabove that as early as in

1923, the legislature had noticed that it was common that a waqf

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endowment had come to be regarded by the public as only a

“clever device” to tie up property in order to defeat creditors and

generally to evade the law under the cloak of a plausible

dedication to the Almighty. Therefore, the possibility of any

person not belonging to Muslim community, converting to the

Islamic religion only in order to take benefit of the protection of

Waqf Act so as to defeat creditors and evade the law under the

cloak of a plausible dedication cannot be ruled out.

137. As has been observed by us hereinabove, the

Constitution Bench of this Court in the case of Shri Ram

Krishna Dalmia (supra), while considering the challenge to the

validity of a statutory provision, held that the Court is entitled to

take into consideration the matters of common knowledge,

matters of common report and the history of the times.

138. It will, therefore, not be out of place to mention that

many persons, who, under the relevant personal laws, are not

entitled to marry with a second woman during the subsistence of

their first marriage and who are liable to be prosecuted for the

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offence of bigamy in such a case, in order to avoid the rigour of

criminal offence, convert themselves into Islamic religion.

139. A perusal of the Statement of Objects and Reasons of

the Mussalman Wakf Act, 1923 would reveal that as early as in

1923, the misuse of the trust property was found to be so

common that a waqf endowment had come to be regarded by the

public as only a “clever device” to tie up the property in order to

defeat creditors and generally to evade the law under the cloak of

a plausible dedication to the Almighty. As such, the provision

which has been enacted with a view to ensure that only persons

who are genuinely professing Islamic religion and have not

converted themselves to Islam only in order to evade the clutches

of law cannot be said to be arbitrary.

140. We are, therefore, prima facie of the view that such a

provision which requires a person practicing Islam for 5 years for

creating a waqf cannot be said to be arbitrary. As already

discussed hereinabove, it cannot be said that it has no nexus

with the object sought to be achieved. However, we are of the

considered view that since no mechanism or procedure has been

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provided as of now for ascertaining as to whether a person has

been practicing Islam for at least 5 years or not, such a provision

cannot be given effect to immediately. We are, therefore, of the

considered view that unless the rules are made by the Central

Government by exercising its rule-making power under Section

109 of the Amended Waqf Act, the provision of Section 3(r) of the

Amended Waqf Act requiring a person to show or demonstrate

practice of Islam for at least 5 years in order to dedicate a movable

or immovable property for the purpose of creating a waqf cannot

be given effect to.

141. The second question is with regard to the validity of that

part of the provision which requires that the property which is to

be permanently dedicated as a waqf should only be a property

which is owned by the person dedicating it.

142. It is to be noted that paragraph 176 of the Treatise

“Principles of Mahomedan Law (20

th Edition)” by Mulla would

show that only an “owner” of a property can create a waqf.

Further, from the Key Quranic Verses specifically by Surah Al-

Baqarah, it can be seen that the very concept of creation of waqf

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is based on charity i.e., to spend one’s own wealth in the way of

Allah. In any case, to do charity a person will have to do charity

of his own property or the money owned by him. A charity cannot

be done by a person of a property or money owned by a third

person or a property owned by the Government. In that view of

the matter, we are of the prima facie view that such a requirement

cannot be held to be arbitrary.

b. Section 4(ix)(b) of the impugned Act

143. The next challenge is with regard to the deletion of the

clause concerning “Waqf by User” i.e., clause (i) of Section 3(r) of

the Original Waqf Act.

144. It would be appropriate to refer to Section 3(r)(i) of the

Original Waqf Act as it existed prior to amendment, which reads

thus:

“3. Definitions.-

…….

(r) “waqf” means the permanent dedication by any

person, of any movable or immovable property for

any purpose recognized by the Muslim law as pious,

religious or charitable and includes -

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(i) a waqf by user but such waqf shall not cease to be

a waqf by reason only of the user having ceased

irrespective of the period of such cesser;

……..

and “waqif” means any person making such

dedication;”

145. It is contended by the petitioners that “Waqf by User” is

a concept which is recognized under the Muslim law and the

deletion of the said provision is arbitrary. Per contra, it has been

contended by the learned Solicitor General that the amendment

to Section 3(r)(i) of the Original Waqf Act would only have a

prospective effect.

146. It can be seen that Section 36 of the Original Waqf Act

required every waqf created before or after the commencement of

the said Act to be registered.

147. As has also been observed by us hereinabove, right from

1923, in all the enactments we have referred to, there was a

requirement of registration of waqfs. We are, therefore, of the view

that if Mutawallis for a period of 102 years could not get the waqf

registered, as required under the earlier provisions, they cannot

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claim that they be allowed to continue with the waqf even if they

are not registered.

148. It is sought to be contended by the learned Senior

Counsel for the petitioners that in many cases there would be no

waqf deeds available. However, it is to be noted that under the

Original Waqf Act, for filing an application for registration, the

accompaniment of a copy of the waqf deed was not mandatory.

Under the Original Waqf Act, it was provided that if no such deed

has been executed or a copy thereof cannot be obtained, the

application could have been made by giving full particulars as far

as they are known to the applicant with regard to the origin,

nature and objects of the waqf.

149. We are, therefore, of the view that if for 30 long years,

the Mutawallis had chosen not to make an application for

registration, they cannot be heard to say that the provision which

now requires the application to be accompanied by a copy of the

waqf deed is arbitrary. Further, if the legislature, on noticing

misuse of the waqf properties, finds that after the enactment of

the impugned Act all such applications should be accompanied

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by a copy of the waqf deed, the same cannot be said to be

arbitrary.

150. Not only that, but we are also of the view that if the

legislature, in 2025, finds that on account of the concept of “Waqf

by User”, huge government properties have been encroached

upon and to stop the said menace, it takes steps for deletion of

the said provision, the said amendment, prima facie, cannot be

said to be arbitrary.

151. It may not be out of place to mention that noticing that

the Andhra Pradesh Waqf Board had notified thousands of acres

of land belonging to the Government as waqf property, the State

of Andhra Pradesh was required to move the High Court of

Judicature at Andhra Pradesh challenging the said notification.

The said High Court had dismissed the said petition. Challenging

the same, the State of Andhra Pradesh had filed an appeal by way

of special leave before this Court which came to be decided by

judgment and order in the case of State of Andhra Pradesh v.

Andhra Pradesh Waqf Board (supra). The appeal filed by the

State was allowed. While setting aside the judgment and order of

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the High Court, this Court quashed and set aside the notification

under challenge and held that the lands in question vest with the

State and/or Corporation.

152. After noticing such instances of misuse, if the

legislature finds that the concept of “Waqf by User” has to be

abolished and that too prospectively, in our view, the same

cannot prima facie be said to be arbitrary. In any case, as

submitted by the learned Solicitor General, the deletion of clause

(i) of Section 3(r) of the Original Waqf Act would come into effect

from the date on which the impugned Act has come into effect.

The said provision would, therefore, not apply retrospectively.

Therefore, the contention of the petitioners that the lands vested

in the waqfs would be grabbed by the Government prima facie

holds no water.

c. Section 5 of the impugned Act (Section 3C of the

Amended Waqf Act)

153. Another provision which is sought to be challenged is

Section 3C of the Amended Waqf Act, which reads thus:

“3C. Wrongful declaration of waqf .— (1) Any

Government property identified or declared as waqf

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property, before or after the commencement of this

Act, shall not be deemed to be a waqf property.

(2) If any question arises as to whether any such

property is a Government property, the State

Government may, by notification, designate on

Officer above the rank of Collector (hereinafter

referred to as the designated officer), who shall

conduct an inquiry as per law, and determine

whether such property is a Government property or

not and submit his report to the State Government:

Provided that such property shall not be treated as

waqf property till the designated officer submits his

report.

(3) In case the designated officer determines the

property to be a Government property, he shall make

necessary corrections in revenue records and submit

a report in this regard to the State Government.

(4) The State Government shall, on receipt of the

report of the designated officer, direct the Board to

make appropriate correction in the records.”

154. What has been provided under sub-section (1) of

Section 3C of the Amended Waqf Act is that any Government

property identified or declared as waqf property, before or after

the commencement of the Act, shall not be deemed to be a waqf

property.

155. It cannot be gainsaid that t he property of the

Government is a property of the public i.e., the citizens of India.

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The Government holds the property in trust for its citizens. Any

person who has wrongful possession of such property cannot be

permitted to claim the same as his own property.

156. Under sub-section (2) of Section 3C of the Amended

Waqf Act, what has been provided is that if any question arises

as to whether any such property is a Government property, the

State Government may, by notification, designate an Officer

above the rank of Collector, who shall conduct an inquiry as per

law, and determine whether such property is a Government

property or not and submit his report to the State Government.

Further, as per the proviso to sub-section (2) of Section 3C of the

Amended Waqf Act, such property shall not be treated as waqf

property till the designated officer submits his report in that

regard.

157. As already observed by us hereinabove, a Government

property is a property of the citizens of India which the

Government holds in trust for its citizens. Accordingly, we are of

the considered view that a provision to determine the question as

to whether any property is a Government property or not by

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designating a Senior Officer above the rank of Collector, who shall

submit his report to the State Government on the same, prima

facie cannot be held to be arbitrary. However, at the same time,

we are of the considered view that the proviso to sub-section (2)

thereof, is, at least, prima facie not sustainable in law.

158. 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.

159. We will now consider sub-sections (3) and (4) of Section

3C of the Amended Waqf Act.

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160. Sub-section (3) of Section 3C provides that in case the

designated officer determines the property to be a Government

property, he shall make necessary corrections in revenue records

and submit a report in this regard to the State Government. Sub-

section (4) thereof provides that the State Government shall, on

receipt of the report of the designated officer, direct the Board to

make appropriate corrections in the records.

161. 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.

162. At this stage, it would be appropriate to refer to Section

83 of the Amended Waqf Act, which reads thus:

“83. Constitution of Tribunals, etc..—(1) The State

Government shall, by notification in the Official

Gazette, constitute as many Tribunals as it may

think fit, for the determination of any dispute,

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question or other matter relating to a waqf or waqf

property, eviction of a tenant or determination of

rights and obligations of the lessor and the lessee of

such property, under this Act and define the local

limits and jurisdiction of such Tribunals:

Provided that any other Tribunal may, by

notification, be declared as the Tribunal for the

purposes of this Act.

(2) Any mutawalli person interested in a waqf or any

other person aggrieved by an order made under this

Act, or rules made thereunder, may make an

application within the time specified in this Act or

where no such time has been specified, within such

time as may be prescribed, to the Tribunal for the

determination of any dispute, question or other

matter relating to the waqf:

Provided that if there is no Tribunal or the Tribunal

is not functioning, any aggrieved person may appeal

to the High Court directly.

(3) Where any application made under sub-section (1)

relates to any waqf property which falls within the

territorial limits of the jurisdiction of two or more

Tribunals, such application may be made to the

Tribunal within the local limits of whose jurisdiction

the mutawalli or any one of the mutawallis of

the waqf actually and voluntarily resides, carries on

business or personally works for gain, and, where

any such application is made to the Tribunal

aforesaid, the other Tribunal or Tribunals having

jurisdiction shall not entertain any application for

the determination of such dispute, question or other

matter:

Provided that the State Government may, if it is of

opinion that it is expedient in the interest of the waqf

or any other person interested in the waqf or the waqf

property to transfer such application to any other

Tribunal having jurisdiction for the determination of

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the dispute, question or other matter relating to

such waqf or waqf property, transfer such

application to any other Tribunal having jurisdiction,

and, on such transfer, the Tribunal to which the

application is so transferred shall deal with the

application from the stage which was reached before

the Tribunal from which the application has been so

transferred, except where the Tribunal is of opinion

that it is necessary in the interests of justice to deal

with the application afresh.

(4) Every Tribunal shall consist of three members—

(a) one person, who is or has been a

District Judge, who shall be the

Chairman;

(b) one person, who is or has been an

officer equivalent in the rank of Joint

Secretary to the State Government —

member;

(c) one person having knowledge of Muslim

law and jurisprudence—member:

Provided that a Tribunal established under this Act,

prior to the commencement of the Waqf (Amendment)

Act, 2025, shall continue to function as such until

the expiry of the term of office of the Chairman and

the members thereof under this Act.

(4-A) The terms and conditions of appointment

including the salaries and allowances payable to the

Chairman and other members other than persons

appointed as ex officio members shall be such as may

be prescribed:

Provided that tenure of the Chairman and the

member shall be five years from the date of

appointment or until they attain the age of sixty-five

years, whichever is earlier.

(5) The Tribunal shall be deemed to be a civil court

and shall have the same powers as may be exercised

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by a civil court under the Code of Civil Procedure,

1908 (5 of 1908), while trying a suit, or executing a

decree or order.

(6) Notwithstanding anything contained in the Code

of Civil Procedure 1908 (5 of 1908), the Tribunal shall

follow such procedure as may be prescribed.

(7) The decision of the Tribunal shall be binding upon

the parties to the application and it shall have the

force of a decree made by a civil court.

(8) The execution of any decision of the Tribunal shall

be made by the civil court to which such decision is

sent for execution in accordance with the provisions

of the Code of Civil Procedure, 1908 (5 of 1908).

(9) Any person aggrieved by the order of the Tribunal,

may appeal to the High Court within a period of

ninety days from the date of receipt of the order of

the Tribunal.”

163. Under sub-section (1) of Section 83 of the Amended

Waqf Act, the State Government is required to constitute as many

Tribunals for the determination of any dispute, question or other

matter relating to a waqf or waqf property. It can further be seen

that the jurisdiction of a Tribunal, so constituted, is wide enough

to decide the issues even with regard to eviction of a tenant or

determination of rights and obligations of the lessor and the

lessee of such property. It can also be seen from sub-section (4)

of Section 83 of the Amended Waqf Act that the Tribunal is a body

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consisting of three Members. One of them is a person who is or

has been a District Judge, who shall be the Chairman. The

second one is a person who is or has been an officer equivalent

in the rank of Joint Secretary to the State Government, who shall

be a Member. The third one is a person having knowledge of

Muslim law and jurisprudence, who shall also be a Member.

164. It is further to be seen from sub-section (9) of Section

83 of the Amended Waqf Act that any person, aggrieved by the

order of the Tribunal, may appeal to the High Court within a

period of 90 days from the date of receipt of the order of the

Tribunal. It is, therefore, clear that the issue with regard to

determination of the title of the property, as a Government

property or not, can be finally decided by the Tribunal and any

person aggrieved by the order of the Tribunal may file an appeal

to the jurisdictional High Court.

165. We are, therefore, of the considered view that the

provision in sub-section (3) of Section 3C of the Amended Waqf

Act which provides that after the designated officer, on an inquiry

in terms of sub-section (2) of Section 3C of the Amended Waqf

97

Act, determines the property to be Government property,

necessary corrections in revenue records be made and a report

be submitted in that regard to the State Government and the

provision in sub-section (4) of Section 3C of the Amended Waqf

Act mandating the State Government, on receipt of the report of

the designated officer, to direct the Board to make appropriate

correction in the records is prima facie arbitrary.

166. As already discussed hereinabove, 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.

167. 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

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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.

d. Section 5 of the impugned Act (Section 3D of the

Amended Waqf Act)

168. The next issue is with regard to the validity of Section

3D of the Amended Waqf Act, which reads thus:

“3D. Declaration of protected monument or

protected area as waqf to be void .— Any

declaration or notification issued under this Act or

under any previous Act in respect of waqf properties

shall be void, if such property was a protected

monument or protected area under the Ancient

Monuments Preservation Act, 1904 (7 of 1904) or

the Ancient Monuments and Archaeological Sites

and Remains Act, 1958 (24 of 1958), at the time of

such declaration or notification.”

169. In this respect, it is pertinent to note that the Ancient

Monuments Preservation Act, 1904 and the Ancient Monuments

and Archaeological Sites and Remains Act, 1958 (collectively

referred to as “Ancient Monuments Acts”) have been enacted for

the avowed purpose of protection of ancient monuments. Such

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monuments are a vital part of the cultural heritage of our country

and therefore they need to be protected.

170. It is further to be noted that Section 3D of the Amended

Waqf Act has been enacted since the ASI appeared before the JPC

and pointed out that on account of declaration of monuments as

waqfs, they were facing many difficulties. It was stated by them

that Mutawallis are not permitting the ASI officials to take steps

for the protection and preservation of these monuments. It was

also stated that, on account of notification(s) issued under the

Ancient Monuments Acts and the notification(s) issued under the

various Waqf Acts, the ASI was finding it difficult to carry out its

function inasmuch as the Mutawallis were parallelly running the

affairs.

171. The argument advanced before us on behalf of the

petitioners was that on account of Section 3D of the Amended

Waqf Act, the persons practicing Islamic religion would be

deprived of performing their religious practices. We, however, are

of the considered view that the said argument does not hold

water.

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172. The fallacy in the argument sought to be advanced by

the petitioners can be seen from the provision contained in

Section 5(6) of the Ancient Monuments and Archaeological Sites

and Remains Act, 1958. Sub-section (6) of Section 5 of the said

Act permits the citizens to continue with their customary

religious practices even if such an area is a protected monument.

In that view of the matter, we do not find that any case is made

out to stay the said provision.

e. Section 5 of the impugned Act (Section 3E of the

Amended Waqf Act)

173. The next challenge is with regard to Section 3E of the

Amended Waqf Act, which reads thus:

“3E. Bar of declaration of any land in Scheduled

or Tribal area as waqf.—Notwithstanding anything

contained in this Act or any other law for the time

being in force, no land belonging to members of

Scheduled Tribes under the provisions of the Fifth

Schedule or the Sixth Schedule to the Constitution

shall be declared or deemed to be waqf property.”

174. It can be seen that the said provision, which begins with

a non-obstante clause, provides that no land belonging to

members of Scheduled Tribes under the provisions of the Fifth

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Schedule or the Sixth Schedule to the Constitution shall be

declared or deemed to be waqf property.

175. It is to be noted that the Scheduled Tribes in general

and, more particularly, those residing in north-eastern areas of

the country, to which the Fifth and Sixth Schedules to the

Constitution are made applicable, are one of the most

marginalized and vulnerable sections of society and they can be

easily exploited. The Fifth Schedule itself empowers the Governor

to make regulations including regulations of prohibition or

restriction on transfer of land from amongst people of Scheduled

Tribes in such areas.

176. Not only that but various statutes like Orissa Scheduled

Areas Transfer of Immovable Property (by Scheduled Tribes)

Regulations, 1956, Andhra Pradesh Scheduled Areas Land

Transfer Regulation, 1959, Maharashtra Restoration of Lands to

Scheduled Tribes Act, 1974 and Karnataka Scheduled Castes and

Scheduled Tribes Prohibition of Transfer of Certain Lands Act,

1978 have been enacted in order to protect the rights of

Scheduled Tribes and the Scheduled Castes. The provisions of

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such statutes have been upheld by this Court in a catena of

judgments including judgments in the cases of Amrendra

Pratap Singh (supra), P. Rami Reddy (supra), R.

Chandevarappa (supra), and Lingappa Pochanna Appelwar

(supra).

177. It is further to be noted that the JPC noticed that there

were numerous cases wherein the declarations as waqf property

of the lands in tribal areas falling under Fifth and Sixth

Schedules to the Constitution were made. It was further noticed

that a declaration of a waqf in these areas was creating a serious

threat to the existence of these cultural minorities, whose

religious practices are distinct and who do not follow religious

practices prescribed under Islamic religion. The JPC, therefore,

observed that the protections envisioned by the founding fathers

of the Constitution should be upheld at all costs.

178. Accordingly, we are of the considered view that a

provision such as Section 3D of the Amended Waqf Act, which

has been enacted with the avowed object of safeguarding the

interest of one of the most marginalized and vulnerable sections

103

of our country, i.e., the Scheduled Tribes cannot be said to have

no nexus with the object sought to be achieved. Such a provision

cannot, therefore, be said to be prima facie arbitrary so as to stay

the same.

f. Sections 10, 12 and 16 of the impugned Act

179. One of the main challenges raised on behalf of the

petitioners is with respect to the provisions contained in Sections

9 and 14 of the Amended Waqf Act, which read thus:

“9. Establishment and constitution of

Central Waqf Council.—(1) The Central Government

may, by notification in the Official Gazette, establish

a Council to be called the Central Waqf Council, for

the purpose of advising the Central Government, the

State Governments and the Boards on matters

concerning the working of Boards and the due

administration of auqaf.

(1A) The Council referred to in sub-section (1) shall

issue directives to the Boards, on such issues and in

such manner, as provided under sub-sections (4) and

(5).

(2) The Council shall consist of—

(a) the Union Minister in charge of waqf—

Chairperson, ex officio;

(b) three Members of Parliament of whom

two shall be from the House of the People

and one from the Council of States;

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(c) the following members to be appointed

by the Central Government from amongst

Muslims, namely:—

(i) three persons to represent Muslim

organisations having all India

character and national importance;

(ii) Chairpersons of three Boards by

rotation;

(iii) one person to represent the

mutawallis of the waqf having a gross

annual income of five lakh rupees

and above;

(iv) three persons who are eminent

scholars in Muslim law;

(d) two persons who have been Judges of

the Supreme Court or a High Court;

(e) one Advocate of national eminence;

(f) four persons of national eminence, one

each from the fields of administration or

management, financial management,

engineering or architecture and medicine;

(g) Additional Secretary or Joint Secretary

to the Government of India dealing with

waqf matters in the Union Ministry or

department— member, ex officio:

Provided that two of the members appointed under

clause (c) shall be women:

Provided further that two members appointed under

this sub-section, excluding ex officio members, shall

be non-Muslim.

(3) The term of office of, the procedure to be followed

in the discharge of their functions by, and the

manner of filling casual vacancies among, members

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of the Council shall be such as may be prescribed by

rules made by the Central Government.

(4) The State Government or, as the case may be, the

Board, shall furnish information to the Council on

the performance of Waqf Boards in the State,

particularly on their financial performance, survey,

maintenance of waqf deeds, revenue records,

encroachment of waqf properties, annual reports and

audit reports in the manner and time as may be

specified by the Council and it may suo motu call for

information on specific issues from the Board, if it is

satisfied that there was prima facie evidence of

irregularity or violation of the provisions of this Act

and if the Council is satisfied that such irregularity

or violation of the Act is established, it may issue

such directive, as considered appropriate, which

shall be complied with by the concerned Board under

intimation to the concerned State Government.

(5) Any dispute arising out of a directive issued by the

Council under sub-section (4) shall be referred to a

Board of Adjudication to be constituted by the

Central Government, to be presided over by a retired

Judge of the Supreme Court or a retired Chief Justice

of a High Court and the fees and travelling and other

allowances payable to the Presiding Officer shall be

such as may be specified by that Government.

…………

14. Composition of Board .—(1) The Board for a

State and the National Capital Territory of Delhi shall

consist of, not more than eleven members, to be

nominated by the State Government,—

(a) a Chairperson;

(b)(i) one Member of Parliament from the

State or, as the case may be, the National

Capital Territory of Delhi;

(ii) one Member of the State Legislature;

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(c) the following members belonging to

Muslim community, namely:—

(i) one mutawalli of the waqf having

an annual income of one lakh rupees

and above;

(ii) one eminent scholar of Islamic

theology;

(iii) two or more elected members

from the Municipalities or

Panchayats:

Provided that in case there is no Muslim member

available from any of the categories in sub-clauses (i)

to (iii), additional members from category in sub-

clause (iii) may be nominated;

(d) two persons who have professional

experience in business management,

social work, finance or revenue,

agriculture and development activities;

(e) Joint Secretary to the State

Government dealing with the waqf

matters, ex officio;

(f) one Member of the Bar Council of the

concerned State or Union territory:

Provided that two members of the Board appointed

under clause (c) shall be women:

Provided further that two of total members of the

Board appointed under this sub-section, excluding

ex officio members, shall be non-Muslim:

Provided also that the Board shall have at least one

member each from Shia, Sunni and other backward

classes among Muslim Communities:

Provided also that one member each from Bohra and

Aghakhani communities shall be nominated in the

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Board in case they have functional auqaf in the State

or Union territory:

Provided also that the elected members of Board

holding office on the commencement of the Waqf

(Amendment) Act, 2025 shall continue to hold office

as such until the expiry of their term of office.

(2) No Minister of the Central Government or, as the

case may be, a State Government, shall be

nominated as a member of the Board.

(3) In case of a Union territory, the Board shall

consist of not less than five and not more than seven

members to be nominated by the Central

Government under sub-section (1).

………

(6) In determining the number of members belonging

to Shia, Sunni, Bohra, Aghakhani or other backward

classes among Muslim communities, the State

Government or, as the case may be, the Central

Government in case of a Union territory shall have

regard to the number and value of Shia, Sunni,

Bohra, Aghakhani and other backward classes

among Muslim auqaf to be administered by the

Board and appointment of the members shall be

made, so far as may be, in accordance with such

determination.

………..

(9) The members of the Board shall be appointed by

the State Government by notification in the Official

Gazette.”

180. It is the contention of the petitioners that the provisions

of Section 9 of the Original Waqf Act have been amended in such

a manner that it now permits the constitution of the Central Waqf

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Council where non-Muslim members will be in majority. On the

same lines, it is contended that the provisions of Section 14 of

the Amended Waqf Act, which pertains to the composition of a

Board for a State and the National Capital Territory of Delhi, now

permits the majority of members to be non-Muslims. It is,

therefore, argued by the petitioners that this would amount to

direct interference by non-Muslims in the religious affairs of the

waqfs.

181. Per contra it is the contention of the learned Solicitor

General appearing on behalf of Union of India that the number of

non-Muslim members insofar as the Central Waqf Council is

concerned cannot exceed 4 and insofar as the Board is

concerned, cannot exceed 3. It is also contended by the learned

Solicitor General that the functions being exercised by the

Council and the Board are largely secular in nature. It is further

contended that their powers and duties are not related to day-to-

day functioning of the waqfs but only with regard to laying down

general policy on non-religious/secular activities. It is, therefore,

contended that the provisions of the impugned Act amending

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Sections 9 and 14 of the Original Waqf Act will not amount to any

interference in religious practices.

182. Though the learned Solicitor General has contended

that the non-Muslim members in the Council would not exceed

4, upon a plain reading of Section 9 of the Amended Waqf Act, it,

prima facie, appears that insofar as the Council is concerned, 12

out of 22 members can be non-Muslims. It can be seen that

insofar as categories covered under clauses (a), (b), (d), (e), (f) and

(g) of sub-section (2) of Section 9 of the Amended Waqf Act are

concerned, they do not provide that the members from these

categories should be from amongst Muslims. It will only be under

the category covered in clause (c) of sub-section (2) of Section 9

of the Amended Waqf Act, where it is required that the members

would be from amongst the Muslims.

183. Similarly, insofar as the Board under Section 14 of the

Amended Waqf Act is concerned, prima facie, it appears that 7

out of 11 members can be non-Muslims. It can be seen that

insofar as categories covered under clauses (a), (b), (d), (e) and (f)

of sub-section (1) of Section 14 of the Amended Waqf Act are

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concerned, there is no requirement that the members have to be

from amongst the Muslim community. It is only the category

covered under clause (c) of sub-section (1) of Section 14 of the

Amended Waqf Act, where it is required that a member has to be

from the Muslim community.

184. We, however, do not wish to go into the question qua

inclusion of non-Muslim members amounting to interference in

religious practices, at this stage, inasmuch as the learned

Solicitor General has made a categorical statement that the

number of non-Muslim members in the Council as provided

under Section 9 of the Amended Waqf Act would not exceed 4 and

they will not exceed 3 in the Board as provided under Section 14

of the Amended Waqf Act.

185. However, in order to avoid any ambiguity, we propose

to issue a direction that the Central Waqf Council should not

have non-Muslim members exceeding 4 in number and 3 non-

Muslim members insofar as Board is concerned.

186. The next challenge is with regard to Section 23 of the

Amended Waqf Act, which reads thus:

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“23. Appointment of Chief Executive Officer and

his term of office and other conditions of

service.—(1) There shall be a full -time Chief

Executive Officer of the Board to be appointed by the

State Government and who shall be not below the

rank of Joint Secretary to the State Government.]

(2) The term of office and other conditions of service

of the Chief Executive Officer shall be such as may

be prescribed.

(3) The Chief Executive Officer shall be ex officio

Secretary of the Board and shall be under the

administrative control of the Board.”

187. Section 23 of the Amended Waqf Act provides for

appointment of Chief Executive Officer and his term of office and

other conditions of service. Sub-section (1) thereof provides that

there shall be a full-time Chief Executive Officer of the Board to

be appointed by the State Government and who shall not be

below the rank of Joint Secretary to the State Government. Sub-

section (3) of Section 23 of the Amended Waqf Act provides that

the Chief Executive Officer shall be ex officio Secretary of the

Board and shall be under the administrative control of the Board.

188. In this respect, it is contended by the petitioners that a

person who is a non-Muslim could also be appointed as the Chief

Executive Officer of the Board. It is further contended that

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permitting a non-Muslim to be the Chief Executive Officer would

be permitting him to directly interfere with the religious affairs of

the minority community.

189. A perusal of clause (e) of sub-section (1) of Section 14

of the Amended Waqf Act would reveal that one of the ex-officio

Members of the Board, has to be a Joint Secretary to the State

Government dealing with the waqf matters. It can further be seen

that the Chief Executive Officer of the Board, who shall also be

the ex officio Secretary of the Board, would be an officer of the

State Government and he would also hold the office of the Joint

Secretary to the State Government dealing with the waqf matters.

Ordinarily, the person occupying the post of the Chief Executive

Officer would normally be a person belonging to the Muslim

community. In any case, as we have already proposed to direct

that in the Board, consisting of 11 Members, only 3 non-Muslim

members may be permitted; we are of the view that, even if, the

ex officio Secretary is a non-Muslim, it would not have any effect

on the functioning of the Board inasmuch as the Chief Executive

Officer will be discharging his functions and duties under the

overall control of the Board. The Board, out of 11 members,

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would have 8 or more members belonging to the Muslim

community. As such, more than 2/3

rd members of the Board i.e.,

majority of the Board will comprise of Muslim members. We,

therefore, do not find that a prima facie case is made out for

staying the said provision. However, there was an opinion that as

soon as possible an endeavour should be made to appoint a Chief

Executive Officer who belongs to Muslim community.

g. Section 21 of the impugned Act

190. The next challenge is with regard to the registration of

every waqf which is required to be done under Section 36 of the

Amended Waqf Act, which reads thus:

“36. Registration.—(1) Every waqf, whether created

before or after the commencement of this Act, shall

be registered at the office of the Board.

(1A) On and from the commencement of the Waqf

(Amendment) Act, 2025, no waqf shall be created

without execution of a waqf deed.

(2) Application for registration shall be made by the

mutawalli:

Provided that such applications may be made by

the waqf or his descendants or a beneficiary of

the waqf or any Muslim belonging to the sect to

which the waqf belongs.

(3) An application for registration shall be made to

the Board through the portal and database and shall

contain following particulars:—

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(a) a description of the waqf properties

sufficient for the identification thereof;

(b) the gross annual income from such

properties;

(c) the amount of land revenue, cesses,

rates and taxes annually payable in

respect of the waqf properties;

(d) an estimate of the expenses annually

incurred in the realisation of the income of

the waqf properties;

(e) the amount set apart under the waqf

for—

(i) the salary of the mutawalli and

allowances to the individuals;

(ii) purely religious purposes;

(iii) charitable purposes; and

(iv) any other purposes;

(f) any other particulars as may be

prescribed by the Central Government.

(4) Every such application shall be accompanied by a

copy of the waqf deed.

(5) Every application made under sub-section (2)

shall be signed and verified by the applicant in the

manner provided in the Code of Civil Procedure,

1908 (5 of 1908) for the signing and verification of

pleadings.

(6) The Board may require the applicant to supply

any further particulars or information that it may

consider necessary.

(7) On receipt of an application for registration, the

Board shall forward the application to the Collector

having jurisdiction to inquire the genuineness and

validity of the application and correctness of any

particulars therein and submit a report to the Board:

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Provided that if the application is made by any person

other than the person administering the waqf, the

Board shall, before registering the waqf, give notice

of the application to the person administering the

waqf and shall hear him if he desires to be heard.

(7A) Where the Collector in his report mentions that

the property, wholly or in part, is in dispute or is a

Government property, the waqf in relation to such

part of property shall not be registered, unless the

dispute is decided by a competent court.

(8) In the case of auqaf created before the

commencement of this Act, every application for

registration shall be made, within three months from

such commencement and in the case of auqaf created

after such commencement, within three months from

the date of the creation of the waqf:

(9) The Board, on registering a waqf, shall issue the

certificate of registration to the waqf through the

portal and database.

(10) No suit, appeal or other legal proceeding for the

enforcement of any right on behalf of any waqf which

have not been registered in accordance with the

provisions of this Act, shall be instituted or

commenced or heard, tried or decided by any court

after expiry of a period of six months from the

commencement of the Waqf (Amendment) Act, 2025:

Provided that an application may be entertained by

the court in respect of such suit, appeal or other legal

proceedings after the period of six months specified

under this sub-section, if the applicant satisfies the

court that he has sufficient cause for not making the

application within such period.”

191. As already discussed hereinabove, the requirement of

registration has not come for the first time in 2025. Right from

1923, the said requirement has been consistently found in all the

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enactments concerning the waqf properties. Now, however, the

requirement of registration has been sought to be challenged on

account of insertion of sub-section (10) of Section 36 of the

Amended Waqf Act.

192. Insofar as the challenge to sub-section (10) of Section

36 of the Amended Waqf Act is concerned, it is to be noted that

the Statement of Objects and Reasons of the 1923 Act itself

shows how the provisions of the Waqf Acts were being misused

so as to deny the claim of creditors and to avoid legal proceedings.

Not only that, but the Waqf Enquiry Committee appointed by the

Central Government in 1969-70 had also recommended bringing

in a provision similar to Section 55E of the Bombay Public Trusts

Act, 1950 so as to prevent the Mutawallis from running away

from law. It is further to be seen that a similar provision was

sought to be enacted in the 1954 Act by way of the Waqf

(Amendment) Act, 1984, however, for various reasons, it could not

be brought into effect. We, therefore, find that such a provision,

rather than being discriminatory, on the contrary, brings parity

with regard to suits etc., instituted for the enforcement of rights

of waqf on par with other trusts governed by other similar

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statutes. It is worthwhile to be noted that such a provision

(Section 87 of the Original Waqf Act) was in existence from 1995

to 2013. However, by the Wakf (Amendment) Act, 2013, it was

deleted. In any case, sub-section (10) of Section 36 of the

Amended Waqf Act itself provides a period of 6 months from the

commencement of the impugned Act . As such, we are of the

considered view that an ample amount of time has been given for

the waqfs which are not registered to get themselves registered.

Apart from that, the proviso to sub-section (10) of Section 36 of

the Amended Waqf Act provides that an application may be

entertained by the court by way of such a suit etc., after the

period of 6 months specified under the said sub-section if the

applicant specifies sufficient cause. We are, therefore, of the

prima facie view that such a provision cannot be held to be

arbitrary or discriminatory.

h. Section 43 of the impugned Act

193. Another challenge is with regard to amendment to

Section 104 of the Original Waqf Act by which the provisions of

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Section 104, which were brought into effect by amendment dated

29

th October 2013 w.e.f. 1

st November 2013, stands deleted.

194. It would be appropriate to refer to Section 104 of the

Original Waqf Act, which reads thus:

“104. Application of Act to properties given or

donated by persons not professing Islam for

support of certain waqf. – Notwithstanding

anything contained in this Act where any movable or

immovable property has been given or donated by

any person not professing Islam for the support of a

waqf being –

(a) A mosque, idgah, imambara, dargah,

khanqah or a maqbara;

(b) a Muslim graveyard;

(c) a choultry or musafirkhana,

then such property shall be deemed to be comprised

in that waqf and be dealt in the same manner as the

waqf in which it is so comprised.”

195. It is submitted by the petitioners that any person, not

professing Islam and belonging to any other religion was also

entitled to create a waqf by giving or donating his property for the

support of a waqf for various purposes. It is submitted that on

such property being given or donated, the property was deemed

to be comprised in that waqf and be dealt with in the same

manner as the waqf in which it is so comprised. It is, therefore,

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submitted that the deletion of the provision which permits a

person not professing Islam to create a trust is arbitrary.

196. In our view, the arguments advanced by the petitioners

in this regard are self-contradictory.

197. On one hand, it is the contention of the petitioners that

waqf is specific to Islamic religion. If that be so, then the deletion

of the provision which permitted the person not professing Islam

to give or donate his property for the purpose of waqf cannot be

said to be arbitrary inasmuch as even according to petitioners

waqf is specific to Islamic religion. In any case, if such a person

desires to donate his property, he can do so by giving or donating

it to a trust or creating a trust for any of the purposes which were

included in Section 104 of the Original Waqf Act. Further, it

appears that the said amendment has been brought to make it

consistent with the definition of waqf under Section 3(r) of the

Amended Waqf Act, which provides that waqf can be created only

by a person showing or demonstrating that he is practicing Islam

for at least five years. We, therefore, prima facie do not find the

deletion of Section 104 of the Original Waqf Act to be arbitrary.

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i. Section 44 of the impugned Act

198. The next grievance is with regard to Section 107 of the

Amended Waqf Act, which reads thus:

“107. Application of Act 36 of 1963.—On and from

the commencement of the Waqf (Amendment) Act,

2025, the Limitation Act, 1963 shall apply to any

proceedings in relation to any claim or interest

pertaining to immovable property comprised in a

waqf.”

199. Section 107 of the Amended Waqf Act provides that on

and from the commencement of the impugned Act, the Limitation

Act, 1963 shall apply to any proceedings in relation to any claim

or interest pertaining to immovable property comprised in a waqf.

200. It is the contention of the petitioners that prior to the

said provision being amended by the impugned Act, the

provisions of the Limitation Act, 1963 were not made applicable

to any suit for possession of any immovable property comprised

in a waqf or for possession of any interest in such property. It is,

therefore, contended on behalf of the petitioners that such a

provision which puts restrictions by way of the Limitation Act,

1963 being made applicable on institution of any claim or interest

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pertaining to immovable property comprised in a waqf is violative

of Article 14 of the Constitution on account of it being arbitrary.

201. We, however, fail to understand as to how the Limitation

Act, 1963, which is otherwise applicable to any other proceedings

with regard to any claim or interest pertaining to immovable

property, and which is now being made applicable to the claim or

interest pertaining to immovable property comprised in a waqf

can be said to be arbitrary. On the contrary, we are of the

considered view that it, in fact, removes discrimination which

was earlier provided in the unamended Act.

202. In that view of the matter, no prima facie case of stay

has been made out by the petitioners in respect of the said

provision.

j. Section 45 of the impugned Act

203. The next challenge is with regard to amendment to

Section 108 of the Original Waqf Act, vide which a special

provision as to evacuee waqf properties was made, which now

stands deleted.

122

204. It would be appropriate to refer to Section 108 of the

Original Waqf Act, which reads thus:

“108. Special provision as to evacuee waqf

properties.—The provisions of this Act shall apply,

and shall be deemed always to have applied, in

relation to any evacuee property within the meaning

of clause (f) of Section 2 of the Administration of

Evacuee Property Act, 1950 (31 of 1950), which

immediately before it became such evacuee property

within the said meaning was property comprised in

any waqf and, in particular any entrustment

(whether by transfer of any documents or in any

other manner and whether generally or for specified

purpose) of any such property to a Board made before

the commencement of this Act in pursuance of the

instructions of the Custodian under the

Administration of Evacuee Property Act, 1950 shall

have, and shall be deemed always to have had,

notwithstanding anything contained in any other

provision of this Act, effect as if such entrustment

had operated to—

(a) vest such property in such Board in the same

manner and with the same effect as in a trustee of

such property for the purposes of sub-section (1) of

Section 11 of the Administration of Evacuee Property

Act, 1950 (31 of 1950) with effect from the date of

such entrustment, and

(b) authorise such Board to assume direct

management of the waqf concerned for so long as it

might deem necessary.”

205. It can be seen that the said provision was inserted when

the Administration of Evacuee Property Act, 1950 was in

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existence. However, now the said Act itself has been repealed. In

that view of the matter, Section 45 of the impugned Act deletes

Section 108 from the Original Waqf Act inasmuch as after the

repeal of the Administration of Evacuee Property Act, 1950, the

said provision is rendered redundant.

206. The next contention is with regard to omission of the

provisions of Section 108A of the Original Waqf Act. It would be

appropriate to refer to the said provision, which reads thus:

“108-A. Act to have overriding effect.—The provisions

of this Act shall have overriding effect

notwithstanding anything inconsistent therewith

contained in any other law for the time being in force

or in any instrument having effect by virtue of any

law other than this Act.”

207. As per Section 108A of the Original Waqf Act, prior to

the coming into force of the impugned Act, the provisions of the

Original Waqf Act were to have overriding effect notwithstanding

anything inconsistent therewith contained in any other law for

the time being in force or in any instrument having effect by

virtue of any law other than the Original Waqf Act. It can also be

seen that the said provision was inserted for the first time by the

124

amendment dated 29

th October 2013 which was brought into

effect from 1

st November 2013.

208. It can thus be seen that in the Original Waqf Act,

Section 108A was not in the statute book. It had only been

brought in the statute book for the first time by Act 27 of 2013

with effect from 1

st November 2013. It can thus be seen that the

provisions of Section 108A were in existence only for a short

period of around 11 years. In the Original Waqf Act, the said

provision did not exist from 1995 till 2013. As the legislature is

competent to bring any provision in the statute book, it is also

competent to delete the said provision from the statute book. We,

therefore, prima facie do not find any substance in the challenge

in that regard.

CONCLUSION

209. In the totality of the circumstances, we do not find that

any case is made out to stay the provisions of the entire statute.

The prayer for stay of the impugned Act is, therefore, rejected.

However, while doing so, in order to protect the interest of all the

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parties and balance the equities during pendency of this batch of

matters, we issue the following directions:

(i) The following part of clause (r) of Section 3 of the

Amended Waqf Act

“any person showing or demonstrating that

he is professing Islam for at least five

years”

shall stand stayed until the rules are framed by the

State Government for providing a mechanism for

determining the question as to whether a person has

been practicing Islam for at least five years or not;

(ii) The proviso to sub-section (2) of Section 3C of the

Amended Waqf Act, which reads thus:

“Provided that such property shall not be

treated as waqf property till the designated

officer submits his report.”

and the provisions of sub-sections (3) and (4) of

Section 3C of the Amended Waqf Act, which read thus:

“(3) In case the designated officer

determines the property to be a

Government property, he shall make

necessary corrections in revenue records

and submit a report in this regard to the

State Government.

126

(4) The State Government shall, on receipt

of the report of the designated officer, direct

the Board to make appropriate correction in

the records.”

shall stand stayed;

(iii) 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;

(iv) It is directed that insofar as Central Waqf Council

constituted under Section 9 of the Amended Waqf Act

127

is concerned, it shall not consist of more than 4 non-

Muslim members out of 22. Equally, insofar as the

Board constituted under Section 14 of the Amended

Waqf Act is concerned, it is directed that it shall not

consist of more than 3 non-Muslim members out of

11;

(v) Though, we are not inclined to stay the provision of

Section 23 of the Amended Waqf Act, we direct that as

far as possible, an effort should be made to appoint

the Chief Executive Officer of the Board who is the ex-

officio Secretary from amongst the Muslim community;

and

(vi) We clarify that what has been observed by us

hereinabove is upon our prima facie consideration for

the purpose of examining as to whether an interim

stay should be granted or not to the impugned Act or

the provision(s) contained therein. The observations

made hereinabove will not prevent the parties from

making submissions with regard to the validity of the

128

provisions contained in the Amended Waqf Act or any

of the provision(s) therein.

210. We place on record our deep appreciation for Shri Kapil

Sibal, Dr. Rajeev Dhavan, Dr. A.M. Singhvi, Shri C.U. Singh and

Shri Huzefa Ahmadi, learned Senior Counsel appearing on behalf

of the petitioners. We also place on record our deep appreciation

for Shri Tushar Mehta, learned Solicitor General of India

appearing on behalf of the Union of India as well as Shri Rakesh

Dwivedi, Shri Ranjit Kumar, Shri Gopal Sankaranarayanan and

Shri Guru Krishna Kumar, learned Senior Counsel appearing for

the contesting parties. Most importantly, we place on record our

appreciation for all the learned counsel for ably assisting the

learned Senior Counsel in advancing their submissions.

..............................CJI

(B.R. GAVAI)

.............................................J

(AUGUSTINE GEORGE MASIH )

NEW DELHI;

SEPTEMBER 15 , 2025.