In Re The Waqf (Amendment) Act, 2025 (1) vs. NaN

2025 INSC 1116
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
Signature Not Verified
WRIT PETITION (CIVIL) NO. 445 OF 2025
Digitally signed by
DEEPAK SINGH
Date: 2025.09.15
11:43:52 IST
Reason:
WRIT PETITION (CIVIL) NO. 447 OF 2025
WRIT PETITION (CIVIL) NO. 450 OF 2025
1


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

2


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
1
(Amendment) Act, 2025 , 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
2
Act, 1995 . 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”.
3


12, 16, 21, 43, 44 and 45 which have amended the provisions of
3
the Waqf Act, 1995 .
3. At the outset, Shri Tushar Mehta, the learned Solicitor
General, appearing on behalf of the respondent-Union of India
th
submitted that at the hearing which took place on 16 April 2025
th
and 17 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”.
4


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
th
Justice of India, Shri Sanjiv Khanna on 17 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.”




5


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
6


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.
7


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.
8


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.
9


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
10


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
11


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
4
in the Joint Parliamentary Committee 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”.
12


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,
13


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
14


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
5
Temple Case) v. Mahant Suresh Das and Others .
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
15


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.
16


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.
17


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.
18


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
19


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
th
are registered as on 8 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.
6
Andhra Pradesh State Wakf Board and Others is one such

6
(2022) 20 SCC 383
20


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
21


which culminated in the case of Viceroy Hotels Limited and
7
Others v. Telangana State Waqf Board and Others , 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
22


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
23


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, and clause (g) i.e., the Additional
ex officio
Secretary or Joint Secretary to the Government of India dealing
24


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
25


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
26


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
27


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
28


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
8
Parliament enacted the Muslim Wakfs Act, 1954 . 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”.
29


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
30


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
9
Archaeological Survey of India 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”.
31


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
32


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
10
Bahadur Prajapati and Others , P. Rami Reddy and Others
11
v. State of Andhra Pradesh and Others , R. Chandevarappa
12
and Others v. State of Karnataka and Others and
Lingappa Pochanna Appelwar v. State of Maharashtra and
13
Another .
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
33


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.

34


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.
35


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
Court of Wards for the Property of Makhdum Hassan
case of
14
Bakhsh v. Ilahi Bakhsh and Others . 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
15
Jammu and Kashmir and Others , Shri Dwivedi submitted
that the Constitution has a federal structure. He, therefore,

14
1912 SCC OnLine PC 45
15
(1984) 2 SCC 456
36


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
th
(20 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
37


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
38


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
39


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
40


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.
16
Hanifa (Dead) By LRs and Others . 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
41


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
42


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
17
Khudawand Haiyul Qaiyum v. State of U.P. and Others ,
18
Mohammed Ghouse v. Karnataka Board of Wakfs ,
Muneerul Islam Sangham and Others v. Valiya Peedikakkal
19
Kunhamu and Another and S. Manikya Reddy v. The A.P.
State Wakf Board, Rep. by its Chief Executive Officer,
20
Hyderabad and Another .

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
43


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
44


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
21
India and Others , 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
45


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
22
case of The State of Bombay and Another v. F.N. Balsara ,
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
46


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.
23
Shri Justice S.R. Tendolkar and Others , a Constitution
Bench of this Court reiterated the position as under:

23
1958 SCC OnLine SC 6 : [1959] SCR 279
47


“ 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
48


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
24
Bihar , 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
49


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
25
Kuan, Delhi and Another v. Union of India and Others , after
referring to three earlier judgments in the cases of The Bengal
Immunity Company Limited v. The State of Bihar and
26
Others , R.M.D. Chamarbaugwalla and Another v. Union of
27
India and Another and Mahant Moti Das and Others v. S.P.
Sahi, The Special Officer In Charge of Hindu Religious Trust
28
and Others , 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
50


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
29
India and Others , 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
51


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
52


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 point out violation of
ex-facie
any of the provisions in Part III of the Constitution or
constitutional principles or is manifestly arbitrary.

53


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
54


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
55


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
56


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
30
particulars relating to wakf , publication of particulars and
31 32
requisition of further particulars , statement of accounts ,
33 34
audit of account and verification . 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
57


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.
58


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.
59


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.
60


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:

61


“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]

62


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
63


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).
64


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 :

65


“ 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
66


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
67


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
68


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
69


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.
70


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
71


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
72


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.
73


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
74


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 had 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.
75


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
76


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
77


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
78


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
st
existence from 1995 till 2013, it was removed with effect from 1
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
79


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
80


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
81


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
th
“Principles of Mahomedan Law (20 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
83


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
85


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
86


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
88


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 the property of the
Government is a property of the public i.e., the citizens of India.
89


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
94


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
95


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
96


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
97


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
98


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
100


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
101


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 Lingappa Pochanna Appelwar
(supra), and
(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
102


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
104


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 evidence of
prima facie
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 ( ) shall be women:
c
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
109


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
rd
community. As such, more than 2/3 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
115


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
116


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
th st
29 October 2013 w.e.f. 1 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,
118


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.
119


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
120


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.
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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
122


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
123


th
amendment dated 29 October 2013 which was brought into
st
effect from 1 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
st
with effect from 1 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.
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(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
126


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
127


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.
128