Opinion This Word Means: Waqf by use

Possibly pre-empting a partial stay on the Act, the Centre on Thursday assured the apex court that no waqf properties will be denotified until the next hearing. “…[Till] the next date of hearing, the Waqf, including Waqf by use, whether declared by way of notification or by way of registration, shall not be identified, neither will their character be changed,” the court observed.

What is the concept of ‘Waqf by use’?

“Waqf by use” simply means that a property can be deemed to be a Waqf through use as a Waqf, even if the original declaration is suspect or non-existent. For example, even in the absence of a Waqfnama, a deed or a document through which a Muslim expresses intention to donate a property or land for charitable purposes or Waqf, a mosque can be deemed to be Waqf property if it is continuously used as such.

What are some key characteristics of a property being ‘Waqf by use’?

LONG-TERM USAGE: The defining factor here is the sustained use of a property for religious or charitable purposes over an extended period. While the length of this use is not officially defined, Indian jurisprudence and legal statutes — including the Waqf Acts of 1954 and 1995 — have upheld the concept.

IMPLIED DEDICATION: A property’s dedication to Waqf status can be inferred from its usage and the owner’s conduct. This is the second key feature here. A property that is being used by a mosque, or one that is being used as a graveyard can, by the virtue of this usage, be considered ‘Waqf by use’ even in the absence of a formal Waqfnama.

Why is the abolition of this concept such a contentious issue?

In Islamic law, the dedication of a property as Waqf was largely done verbally until documentation became the standard norm. The amended Act, by omitting the provisions relating to the “Waqf by use,” makes a Waqf property suspect in the absence of a valid Waqfnama — and open to interference by the government, or raising of land disputes by private entities.

As Senior Advocate Kapil Sibal, representing the petitioners challenging the amended Waqf Act in the SC, told the court on Wednesday: “Many of these Waqfs were created 100 years ago. Where do you find the records? They will now ask for a Waqf deed for a 300-year-old property… that’s the problem”. According to Senior Advocate Abhishek Manu Singhvi, also representing the petitioners, “half of the eight lakh Waqf properties are “Waqf by users”.”

Chief Justice of India Sanjiv Khanna seemed to echo these concerns. He said on Wednesday: “Before the Britishers came, we did not have a land registration law or Transfer of Property Act. Many of the masjids were created in the 14th or 15th centuries. To require them to produce a registered deed is impossible. Most of the cases, say Jama Masjid Delhi, the waqf will be waqf by user”.