What is 'waqf by user' and why did Supreme Court raise concerns over this provision in amended law?

Solicitor General Tushar Mehta, representing the Centre, defended the legislation by citing public concern over large areas being declared as Waqf land

The Supreme Court on Thursday made the Centre assure that the “waqf by user” provision should not be denotified till the next date of hearing on May 5. The court granted the Centre a week to file a preliminary response.

"The properties declared by courts as waqfs should not be de-notified as waqfs, whether they are by waqf-by-user or waqf by deed, while the court is hearing the challenge to the Waqf Amendment Act 2025,” said the top court.

The top court on Wednesday said if property declared waqf by a user is denotified, it can have “grave ramifications”. “We will say properties declared by the court to be waqf or held to be waqf will not be de-notified as waqfs or be treated as non-waqf properties, whether waqf-by-user or waqf-by-declaration...” said the SC.

‘Waqf by user’ refers to properties that may not have formal deeds or registration but have been in continuous public use for religious or charitable purposes—such as mosques, dargahs, graveyards, madrassas, or wells.

This concept was legally recognised through court rulings and codified in the Waqf Amendment Act, 2013, passed by the UPA government.

A report by Times India cited the data available on the Waqf Assets Management System of India (WAMSI) portal. According to the data, 30 states and Union territories along with 32 Boards have reported a total of 8.72 lakh Waqf properties across 38 lakh acres. Of these, 4.02 lakh properties are classified as "waqf by user”.

The petitioners questioned a provision in the 2025 Act which mandated a person to prove he had been a practising Muslim for five years before dedicating his property as waqf.

The CJI voiced concern that denotification of waqf-by-user properties would lead to a “huge problem”.

“Before the Britishers came, we did not have land registration law or Transfer of Property Act. Many of the masjids were constructed in the 14th, 15th and 17th centuries. Asking them to produce a registered sale deed now is an impossibility. Like in the case of Jama Masjid, which is waqf-by-user property. If you had established ‘waqf-by-user’ in the versions of the Waqf Act prior to the 2025 Amendment Act, can it be made void now?” CJI Khanna said.  asked the Union government, represented by Solicitor General Tushar Mehta.

However, Solicitor General Tushar Mehta, representing the Centre,  defended the legislation by citing public concern over large areas being declared as Waqf land. “Many Muslims do not want to be under the Waqf Board. They want to have private charity,” he said. Meanwhile, petitioner Asaduddin Owaisi said the top co has put a stay on the deletion of ‘Waqf by User’ and said he had raised the same issue in Parliament as well.

Petitioner Asaduddin Owaisi said if the ‘waqf by user’ properties were deemed to be government properties, it would amount to snatching the properties from Muslims who will have to fight long battles in courts to reclaim them.