Why Waqf by User Had To Be Curbed?

Misuse of the ‘Waqf by User’ Provision in the Waqf Act: A Legal and Social Concern

The Waqf system, meant to serve religious and charitable purposes under Islamic traditions, has evolved into a powerful institutional mechanism in countries like India, where Muslims are a significant minority. The Waqf Act, particularly in its 1995 and 2013 versions, gave sweeping powers to Waqf Boards, allowing them to manage properties across the country. Among the most controversial clauses in this legislation is the concept of “Waqf by user”, which allows land to be declared waqf if it is shown to have been used over time for religious purposes—even without legal title or ownership documentation.

While seemingly benign and rooted in protecting communal religious spaces, this provision has been repeatedly misused to encroach on public or private land, claim disputed territories, and bypass civil judicial mechanisms. This article explores the mechanics and misuse of the “waqf by user” clause, with illustrative examples, and evaluates its implications on law, secularism, and private property rights.

What is ‘Waqf by User’?

Under the Waqf Act, a property may be considered waqf not only if it is explicitly donated for religious or charitable use but also by virtue of continuous usage. This means if a piece of land is being used as a mosque, graveyard, or dargah—even without a deed of dedication—it can be declared waqf. The idea is to protect religious customs and heritage, but it has created legal chaos in several cases.

Legal Loophole or Religious Right?

In principle, safeguarding long-standing religious use is acceptable. However, unlike Hindu or Christian religious properties which require formal registration or deeds, waqf by user does not require any documented proof of ownership or endowment—just proof of public religious use. This subjective and vague standard has led to land grabs under the garb of religious practice.

Examples of Misuse

1. Hindus Denied Ownership Despite Holding Titles

In many cases across India, Hindu families and individuals with legal property documents have found themselves dispossessed when local Waqf Boards declared their land as waqf by citing that a small portion was historically used for offering namaz or a Sufi saint’s shrine existed nearby.

  • Case in Tamil Nadu: In Tiruchirapalli, Waqf Boards claimed a whole village as waqf land because of a centuries-old dargah located in the area. Hindu farmers with proper land titles received notices suggesting they were on Waqf land. The landowners were asked to seek permission to sell or develop their own properties.

2. Encroachment on Government Land

In multiple states, government land has been quietly declared as waqf based on undocumented claims of religious use.

  • Case in Karnataka: In Bengaluru, the Karnataka Waqf Board declared several acres of railway land and even parts of government hospitals as waqf based on “religious usage” claims. These were later contested by civic bodies, but the legal battles delayed crucial infrastructure projects.

3. Graveyards Expanding Over Time

Graveyards and dargahs have often expanded over time without any formal demarcation. Once a portion of land starts being used informally for burials or religious gatherings, local Waqf Boards label the extended area as waqf—even if adjacent land belongs to private or government entities.

  • Case in Uttar Pradesh: In Meerut, a graveyard expanded over the years into neighboring private land. When the owners tried to fence it, the Waqf Board objected and claimed it was part of waqf property based on community use over the years.

Political Patronage and Lack of Accountability

One reason for the unchecked misuse of the “waqf by user” provision is political patronage. Waqf Boards are often controlled by political appointees who use the system for vote-bank politics. There have been reports of boards exercising quasi-judicial powers, bypassing courts, and taking over land simply based on religious claims.

The lack of accountability is further worsened by the fact that Waqf Board decisions are often shielded from judicial review unless challenged in special tribunals. This gives them a degree of power not enjoyed by any other religious body in India.

Disregard for Secularism and Equality

The unique privileges given to waqf institutions under the law—including the “waqf by user” clause—violate the basic secular principle of equal treatment under law. No other community can claim land based on use without formal ownership or donation. The provision effectively enables land acquisition through tradition, not law.

Critics argue that this violates Article 14 (Right to Equality) and Article 300A (Right to Property) of the Constitution. The Waqf Board can nullify decades-old property rights of individuals or state institutions simply by showing past religious use—an impossible standard to challenge for ordinary citizens.

Impact on Development and Urban Planning

This misuse also affects infrastructure development. Projects are often halted because of waqf claims on land used by the public for namaz or where a tomb is found. Even metro rail projects, road expansions, and school buildings have faced delays due to such sudden waqf declarations.

  • Delhi Metro Project: Construction was delayed due to claims that the land housed an old dargah used by locals, even though it was previously unregistered and not visible in land records. Waqf Board objections forced a route change, adding significant cost.

Recent Legislative Pushback

The growing backlash against these misuses led to calls for amending or repealing the “waqf by user” clause. The Waqf Reforms of 2025 (hypothetically, if passed or proposed) aim to introduce provisions that require proof of ownership, time-bound challenges, and registration of religious use before claiming waqf status.

These reforms seek to bring waqf law on par with secular land laws and ensure that land cannot be acquired without due process or compensation.

Conclusion

The “Waqf by user” provision, though introduced to preserve religious customs, has become a tool for land encroachment, religious assertion, and legal overreach. In a secular democracy, religious usage cannot override ownership laws or infringe on private and public rights. The misuse of this provision not only distorts property relations but also undermines public trust in the fairness of religious laws.

India needs to revisit such laws and ensure that religious endowments do not become instruments of encroachment and exclusion. All properties—irrespective of religion—must be subject to the same legal scrutiny, ownership proof, and regulatory oversight.

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