Waqf Registration Requirement Not Harmless As Claimed By Centre; Effectively Derecognises Waqfs-by-User, AIMPLB Tells Supreme Court

All India Muslim Personal Board (AIMPLB) via the General Secretary, Mohammed Fazlurrahim, has filed a rejoinder countering the claims made by the Union Government in its counteraffidavit in the In Re: The Waqf (Amendment) Act, 2025. The affidavit has been filed in the petition challenging the Waqf (Amendment) Act 2025, which is listed on May 5 before a bench comprising CJI Sanjiv Khanna, Justice Sanjay Kumar and Justice KV Viswanathan. AIMPLB alleges that there is an attempt to de-recognise the legal status of waqf by user which may not be registered. In its affidavit, the Centre stated that the omission of the 'waqf-by-user' provision will not impact the age-old waqf properties, provided they are registered before 08.04.2025. The Centre also said that no deed or document is required for registration as per Section 3(1)(r), and only certain information needs to be provided. It also said that registration is not a new requirement for waqfs and that the said condition has been in existence for about 100 years, since the enactment of the Mussalman Wakf Act, 1923.Addressing these arguments, the AIMPLB said that the "amendment to section 3 ( r ) in effect de-recognises the legal status of waqfs by user which may not be registered and thus goes to the root of their existence." By saying that waqf-by-user properties will only be recognised if they are registered, the Centre has made registration a condition for the creation of Waqfs, which is impermissible, it argued."Such withdrawal of recognition of waqf by user that has been in place since time immemorial, as well as all hitherto waqf regulation in this country for centuries, is hit by the principle of non-retrogression as propounded in Navtej Singh Johar & Ors vs Union of India (2018) 10 SCC 1," it said.Registration was never a condition precedent for the creation of waqf: AIMPLBAIMPLB claims that the Union Government fails to establish how registration was a precondition to the existence of any waqf."The respondent's case at its highest is that registration of waqfs once created are mandatory under various provisions of Acts regulating wakf. This has no bearing on the validity of an unregistered waqf. As argued above, an unregistered waqf does not cease to hold the status of waqf. In the history of waqf regulation in this country through various acts, registration has never had bearing on the recognition of the property as waqf itself. Thus the amendments in Section 3 (r ) are unwarranted and manifestly arbitrary."AIMPLB says registration was never a condition precedent for the creation of a waqf. However, now it has become a precondition with the intention to remove waqf by user. "If the purpose of the Amendment is to insist on registration, then such a concern is already assuaged by Section 36 of the unamended Waqf Act of 1995, and it would obviate the need for an amendment in section 3. Thus, the change in definition of waqf u/s 3(r) by omitting 'waqf by user' is to abridge the right of creation and recognition of waqf by user under law. Contrary to the claim by the Union, the Amendment Act does not innocuously insist on registration but rather removes the basis of waqf by user, and in effect making registration as a condition for creating waqf."AIMPLB also alleges that the Government in para. 30 of their counteraffidavit make contradictory statements. It is stated that in the first line, the Union admits to "taking away the statutory protection to a "waqf by user". Whereas, in the subsequent lines they say: "misleading narrative is built very mischievously giving an impression that those waqfs [including 'waqf by user'] which do not have document to support their claims will be affected.""That the real mischief lies in the requirement of registration itself as a condition for protection of the statute. While registration is envisaged under Section 36 of the unamended Waqf Act of 1995, it is not a condition for recognition of waqf by user," as stated in the rejoinder.Further, AIMPLB says that it is wrongly suggested that under the Mussalman Waqf Act, 1923, registration was a mandatory condition for the creation of waqf as claimed by the Union. It is argued that the distinction created between registration with or without a waqf deed is discriminatory."Section 3 of the 1923 Act merely obliges the mutawalli to furnish particulars relating to the waqf and furnish a statement of accounts (u/s 5). In any event, the consequence of non-registration cannot result in usurpation of property/auqaf...The settled waqfs irrespective of their registration, considering the nature of their use, must be recognised as Waqf. That this precise argument of registration being mandatory was rejected in Mohammed Ghouse v. Karnataka Board of Wakfs, ILR 1986 Kar 1523."No provision in previous laws which says waqf would be invalid on failure to register: AIMPLBAIMPLB in its rejoinder clarifies that the obligation to register the waqf under the 1923 Act, 1954 Act and the 1995 Act are ...

Waqf Registration Requirement Not Harmless As Claimed By Centre; Effectively Derecognises Waqfs-by-User, AIMPLB Tells Supreme Court

Gursimran Kaur Bakshi

Tags