What the Supreme Court of India stayed
The November hearing will build on the interim order dated September 15, 2025. In that order the Court refused to stay the entire Waqf (Amendment) Act, 2025. It stayed operation of defined provisions and left the rest of the statute to operate. A Bench of Chief Justice B. R. Gavai and Justice A. G. Masih gave three sets of interim directions that continue to govern the field.
First, the Court stayed Section 3(r), which required a person creating a waqf to show that he or she had practised Islam for at least five years. The stay was ordered pending the framing of state guidelines for such determination. The problem flagged at the interim stage was practical. Without rules on who certifies practice, what proof counts, and how disputes are resolved, the provision could block genuine dedications and invite arbitrary rejection. The stay kept dedications workable while the rule-making gap remains.
Second, the Court stayed parts of Section 3C, including the proviso to sub-section (2) and sub-sections (3) and (4). Those parts allowed officers of the government, including a Collector, to decide whether a property identified as waqf was in fact government property and to order correction of revenue records on that basis. The interim order cited a violation of the separation of powers. An executive officer deciding title in a dispute where the government itself claims ownership, and then directing changes in the record, collapses the roles of claimant, judge and record-keeper.
Third, the Court issued directions on composition. It said the number of non-Muslim members was to be limited to not more than three in the Waqf Boards and not more than four in the Central Waqf Council. The cap was an interim balance. It allowed the new composition scheme to function without permitting a shift that petitioners said would alter the character of institutions meant to administer Muslim religious endowments.
Limitation Act fears take centre stage
At the October 15 hearing, counsel returned to the Limitation Act. The concern was not abstract. If limitation applies to claims for recovery or declaration of waqf properties in a new way after the 2025 amendments, suits or applications that could have been filed earlier may be treated as time-barred. Managers who held land for religious or charitable use for decades without formal registration fear that delay, often caused by poor records rather than neglect, will now defeat the claim.
State and private title presents the other side. Owners of land adjoining dargahs, mosques, graveyards and choultry properties want finality. They argue that open-ended claims cloud marketable title and stall development, sale and bank finance. For them, limitation is a shield that prevents revival of stale disputes.
The Court has not decided this point. The November hearing will need to examine the text of the amendments, the savings for pending proceedings, and the interaction with the general law of limitation. The Bench will have to decide whether the amendments merely clarify procedure or reset substantive rights. Until that ruling, lawyers on both sides are advising clients to preserve evidence of possession, dedication, user and income application, and to file protective proceedings within time rather than rely on an expected reading of the law.
In day-to-day India property law practice, limitation is often outcome-determinative. A strong historical claim can fail on delay, while a weak possessor can gain protection through lapse of time. That is why the submissions on October 15 stressed irreversibility. If entries are corrected, auctions are held or compensation is paid out while the challenge pends, a later declaration that the amendment was invalid may offer little practical relief.
Waqf by user faces uncertain future
The second pressure point is waqf by user. Under long-standing law, land long used for pious, religious or charitable purposes as waqf could be treated as waqf even without a formal deed. Graveyards used by a community for generations, village mosques maintained by local contributions, and pathways and wells attached to shrines often fall in this class. The claim rests on continuous, open and religious use, proved through witnesses, revenue remarks, gazetteers, survey records and conduct.
Petitioners say the 2025 amendments weaken or discard that protection. If waqf by user is no longer recognised, or is recognised only on fresh proof under stricter standards, many old institutions that never had deeds will lose shelter. Managers say registration was patchy in rural areas, records were lost in partition and reorganisation, and oral dedication was common. A rule that demands formal documents for every claim would, in their view, erase history.
The Union has defended reform on the ground that an open-ended doctrine invites encroachment. Large parcels have been notified as waqf on the basis of user alone, with neighbouring farmers and municipal bodies learning of the claim only when mutation is sought to be changed. A clearer test, with documentation and survey, would in this view reduce abuse and bring waqf administration in line with modern titling.
The interim order of September 15, 2025 did not settle the fate of waqf by user. The November hearing will have to address whether the doctrine survives, in what form, and what happens to properties already recorded on that basis. The practical stakes include daily management, the right to collect income, the power to grant leases, and the standing to sue trespassers. If status changes mid-case from waqf to non-waqf, leases granted by a mutawalli, repairs sanctioned by a Board and suits filed in the tribunal could all be questioned.
Boards wait for clarity on membership
Composition remains a live administrative issue. The September interim caps continue, but Boards need working majorities to approve budgets, sanction litigation, register new waqfs, direct surveys and discipline managers. Any gap in membership stalls files.
Tamil Nadu shows the strain. On February 19, 2026, the Court stayed an interim order of the Madras High Court that had found the functioning of the Tamil Nadu Waqf Board prima facie illegal for failure to nominate two non-Muslim members as required by Section 14 of the Amendment Act. Senior counsel for the Board said the High Court order of January 8 had effectively paralysed the Board. The stay allowed the Board to continue work without immediate disruption over the non-nomination, pending further proceedings.
Other states face similar arithmetic. Nominations take time, background checks add delay, and litigation over eligibility can leave seats vacant for months. Chief executive officers are reluctant to sign off on leases and litigation where the validity of the Board itself is under cloud. The November hearing is expected to give firmer guidance on whether business transacted by Boards with incomplete membership remains valid, and whether day-to-day administration can proceed under the interim caps.
What boards and managers should watch
Three questions will shape advice after November 3. The first is the scope of any continued stay. The Court stayed proof-of-practice and Collector adjudication in September 2025 and refused a wholesale stay. Parties will press for extension, modification or vacation. Boards want to know whether they can process new dedications without demanding five-year proof, and Collectors want to know whether they can act on complaints that waqf claims overlap government land. Until the Bench speaks, the September position holds.
The second is protection for the record. Counsel fear that changes in revenue records made under the amended machinery will be hard to undo. The Court may consider a direction that no final mutation, alienation or alteration of character of disputed properties be made without leave of the tribunal or the Court until the constitutional challenge is decided. Such a freeze would preserve the subject matter without deciding title. Purchasers and lenders should therefore insist on full chain searches, tribunal-pending certificates, and Board no-objection records before closing deals involving any parcel with a waqf remark.
The third is the hearing plan itself. With 115 interventions on file, the Bench will likely group counsel by theme, set time limits and call for common compilations. Legal aid counsel will need to be briefed early. State Boards should prepare data on the number of properties held as waqf by user, the number of cases where limitation is pleaded, and the number of files held up for want of nominations. Concrete figures will help the Bench frame workable interim directions rather than broad declarations.
The November 3 listing does not decide validity. It decides how the challenge will be heard and what safeguards apply in the meantime. For managers, the immediate task is preservation: keep registers, receipts, expenditure vouchers, photographs of user, and survey sketches in order. For Boards, the task is continuity under the September caps. For title-holders facing a waqf claim, the task is timely assertion of rights within limitation. The Bench of Chief Justice Surya Kant and Justice Joymalya Bagchi will take up the matter on November 3, and the directions of that day will set the terms for waqf administration until final judgment.
