Undoing waqf by user problematic as old mosques don’t have sale deeds: Supreme Court

The Supreme Court, on Thursday, addressed a series of petitions challenging the Waqf Act, asserting that properties declared as waqfs by courts should not be de-notified, irrespective of whether they are 'waqf-by-user' or established by deed. 

A three-judge bench, led by Chief Justice of India Sanjiv Khanna, sought clarification from the Centre regarding the removal of the 'waqf by user' provision. The court highlighted the historical context, noting that most mosques constructed between the 14th and 16th centuries lack sale deeds.

The bench questioned the Centre, asking if 'waqf by user' would still be recognised, emphasising that undoing established waqfs would be problematic. It pointed out the impracticality of requiring registered deeds for such mosques, as they qualify as waqf-by-user properties. 

Furthermore, the court stated that the condition in the Waqf Amendment Act, which implies that a waqf property will not be treated as such while the collector investigates its status as government land, should not be enforced.

Solicitor General Tushar Mehta, representing the Centre, clarified that the Act does not halt the usage of waqf properties; it merely withholds benefits until a decision is made. Chief Justice Khanna inquired about the implications of this, particularly concerning rental income and the necessity of the provision. Mehta responded, affirming that the usage of a property as a waqf would not cease. 

Additionally, the Supreme Court raised concerns about the inclusion of non-Muslims on waqf boards and the Central Waqf Council, questioning whether the Centre would permit Muslims to join Hindu endowment boards.