2. The proviso to Section 3C(2) that a Waqf property will not be treated a Waqf Property till the designated officer of the Government submits his report on whether there is encroachment has been stayed. Also, the Court stayed Section 3C(3) which says - "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" . The Court also stayed Section 3C(4) which says that the State Government shall, on receipt of the report of the designated officer, direct the Board to make appropriate correction in the records".
"Permitting the collector to determine the rights is against the separation of powers; Executive can't be permitted to determine the rights of citizens," CJI Gavai observed. Until there is finality of the findings by the designated officer, the rights of property will not be affected. "Until the issue of the title of the waqf property in terms of Section 3C is not finally decided, the proceedings initiated under Section 83 by the tribunal and subject to further orders by the High Court, neither the waqf will be dispossessed of the property nor the revenue record and records of the Board shall be affected. However, upon commencement of inquiry under Section 3C, and till final determination under Section 83, and subject to further orders of the high court in appeal, no third-party rights shall be created in respect of such properties," the Court observed.
3. The provision allowing the nomination of non-Muslim members to the Waqf Boards has not been stayed. However, the Court observed that, as far as possible, the Chief Executive Officer of the Board should be a Muslim person. The Court observed that for the Central Waqf Council, it shall not consist of more than 4 non-muslim members, and for State Waqf Board, not more than 3 non-Muslim members.
Common provisions challenged in all petitions Omission of 'waqf by user' provision, inclusion of non-Muslim members in the Central Waqf Council and State Waqf Board, pre-condition of 5 years as practising Muslim for create of waqf, allowing Government to decide disputes regarding encroachment of government property, application of Limitation Act to Waqf Act, invalidating Waqf created over ASI protected monuments, restrictions on creating Waqfs over scheduled areas, limiting the inclusion of women members to two in the Council and Boards, diluting waqf-alal-aulad, renaming 'Waqf Act, 1995 to "Unifed Waqf Management, Empowerment, Efficiency and Development," providing appeal against the Tribunal's order etc., are some of the provisons under challenge. Case Details: IN RE THE WAQF (AMENDMENT)w ACT, 2025 (1)|W.P.(C) No. 276/2025
