New Delhi: In a judgement with implications for the governance of Waqf properties, the Madras High Court has ruled that mere existence of a tomb or shrine for religious use does not qualify a property as waqf.
Setting aside the Tamil Nadu Waqf Board’s appointment of a new Mutawalli for the Sarkar Syed Habibullah Sha Khadari Arif Rabbani Hazarath Dargah in Triplicane, Chennai, Justice K.G. Thilakavadi held on 5 June that waqf status requires the permanent dedication of property by a Muslim for purposes recognised under Muslim Law.
“Mere existence of a Dargah does not automatically confer jurisdiction upon the Board unless the institution is established or treated as a Waqf in accordance with law,” the court said.
Justice Thilakavadi said the board lacked the legal foundation to treat the dargah as waqf property, and that a statutory survey and gazette notification were mandatory to recognise a property as waqf under the Waqf Act, 1995.
The core issue in this case is whether the dargah and the land on which it stands are legally waqf and, therefore, whether the Tamil Nadu Waqf Board had jurisdiction to appoint a Mutawalli.
In India, waqf property is managed by a mutawalli (who does not own it) and is under the supervision of the state waqf board.
The case
The dispute before the court revolved around the 240-year-old dargah on government poromboke land, or designated land for public or community use, which was leased to the Bharat Scouts and Guides.
The petitioner, who went to court in 2023, claimed to have served as Mutawalli for the dargah for over four decades, and had questioned the state Waqf Board’s decision to appoint someone else as the Mutawalli.
This appointment was based on a 2010 trust deed and a series of representation letters.
The board argued that the dargah was a waqf property by long religious use and that the family of the appointed Mutawalli had historically administered it.
The Public Works Department, however, maintained that the land was government property and had never been dedicated as waqf.
What the court said
The court held that a survey and publication of the List of Auqaf (waqf properties managed under the Waqf Board) under the existing law are not mere procedural formalities, but mandatory preconditions for recognising any property as waqf.
The 1995 act requires the state government to appoint a Survey Commissioner to identify all waqf properties, determine their nature, origin, income and boundaries, and submit a detailed report.
Only after this process can the government publish the List of Auqaf in the Official Gazette.
The court emphasised that no property can be treated as waqf unless it appears in this list, and only such properties can be the subject of disputes before the Waqf Tribunal.
In the present case, the court found that the dargah land had never been surveyed, never been notified, and never been included in the List of Auqaf.
The court said that the board’s assertion that the survey was “under process” was insufficient.
The court held that the statutory scheme leaves no room for assumption or presumption: “Conducting of the surveys before declaring a property a Waqf property is a sine qua non.”
It added that without this foundational step, the board could not assume jurisdiction over the dargah.
The court also examined the board’s reliance on registration of waqf properties. While the board had directed the registration of the dargah, the court clarified that registration presupposes the existence of a waqf and cannot be used to convert a non‑waqf property into a waqf.
It said registration without a survey and notification is “legally impermissible” and the board’s direction to register the dargah was, therefore, invalid.
This finding had a direct impact on the board’s power to appoint a Mutawalli.
The court reiterated a fundamental principle: appointment of a Mutawalli presupposes the existence of a waqf. Since the dargah was not legally established as a waqf property, the board had no jurisdiction to appoint a Mutawalli.
The judgement also determines whether the dargah can be regarded as a waqf, whether by express dedication or through continuous public use.
Under Muslim law, a waqf requires permanent dedication of property by a Muslim owner for a pious, religious or charitable purpose, accompanied by an intention to divest ownership permanently.
The court found no evidence of such dedication. There was no waqf deed, no revenue records, no inam entries, and no historical grants.
The land itself belonged to the government, and there was no evidence that any Muslim owner had ever dedicated it as waqf.
The court also rejected the argument that the dargah was a waqf by use—a doctrine under which long, continuous, public religious use can sometimes establish a property as waqf.
The court held that the respondents had failed to produce evidence of such use.
The mere existence of a tomb or shrine, or the performance of religious rituals, does not automatically convert government land into waqf property. The court observed that “the alleged use of the disputed land is not established to construe it as Waqf by user”.
The tribunal’s acceptance of the board’s assumption was held to be legally erroneous.
The court also addressed the competing claims of the appellant and the respondent regarding foundership and hereditary rights. Both parties claimed to be the founder or hereditary custodian of the dargah.
The court held that such disputes cannot be decided by the Waqf Board or the tribunal but they must be adjudicated by a competent Civil Court. Until such adjudication takes place, neither party can claim exclusive rights over the institution.
Ultimately, the court allowed the appeal and set aside the Waqf Board’s 2023 resolution and the consequential appointment order.
(Edited by Sugita Katyal)