Recently, the Madras High Court ruled that the mere existence of a Dargah or its religious use does not automatically confer Waqf status upon a property. Setting aside the Tamil Nadu Waqf Board's decision to appoint a Mutawalli and treat a 240-year-old Dargah as Waqf property, the Court held that the Board cannot exercise jurisdiction over a religious institution unless its status as a Waqf is first established in accordance with the procedure prescribed under the Waqf Act. The Court clarified that jurisdiction flows from lawful proof of Waqf status, not from the religious character of the institution alone.
Brief facts:
The case arose from a dispute over whether a centuries-old Dargah situated on government land could be treated as Waqf property and brought under the control of the Tamil Nadu Waqf Board. The Appellant, who claimed to have been managing the Dargah for several decades, challenged the Board's decision appointing another individual as Mutawalli and treating the institution as Waqf. He contended that the mandatory procedure prescribed under Sections 4 and 5 of the Waqf Act, 1995, including survey and notification of the property as Waqf, had never been undertaken. After the Waqf Tribunal upheld the Board's action, the matter reached to the High Court, where the legality of the Board's exercise of jurisdiction over the Dargah fell for consideration.
Contentions of the Appellant:
The Appellant argued that the Tamil Nadu Waqf Board had assumed jurisdiction without first establishing that the property was legally a Waqf. The counsel submitted that the Dargah stood on Government poromboke land and had neither been surveyed, notified, nor included in the statutory list of auqaf as required under the Waqf Act, 1995. The Appellant contended that religious use alone could not confer Waqf status on a property and further argued that the trust deed relied upon by the Board was insufficient to prove a valid dedication. The counsel also submitted that the direction for registration under Section 36(4) was issued without complying with the mandatory statutory procedure prescribed under the Waqf Act, 1995
Contentions of the Respondent:
The Tamil Nadu Waqf Board contended that the Dargah was a religious and charitable institution falling within its supervisory jurisdiction and submitted that its registration as a Waqf was already under process. The counsel argued that property dedicated for religious and charitable purposes acquires the character of a Waqf and therefore comes under the regulatory control of the Board. The Respondent further submitted that a Waqf may come into existence not only through an express dedication but also through long and continuous public religious use. The Public Works Department, however, disputed the claim, maintaining that the land belonged to the Government and had been allotted to the Bharat Scouts and Guides.
Observation of the Court:
Justice K. Govindarajan Thilakavadi observed that a Dargah can be declared as a Waqf only if it satisfies the requirements of the Waqf Act, 1995. The Bench rejected the proposition that religious use alone is sufficient to confer Waqf status, holding that, “Mere religious use or existence of a tomb or shrine is not automatically sufficient.” Emphasising the essential requirement of dedication, the Court stated that there must be “permanent dedication of property by a Muslim for purposes recognised by Muslim Law as pious, religious, or charitable,” which was not established in the present case.
The Court further held that compliance with the statutory procedure under Sections 4 and 5 of the Waqf Act is mandatory before a property can be treated as Waqf. It noted that a survey, preparation of a report and publication of the list of Waqfs are indispensable steps under the Act. Stressing the significance of these requirements, the Bench observed that “conducting of the surveys before declaring a property a Waqf property is a sine qua non.” Since the disputed property had neither been surveyed nor notified, the Court found that the legal foundation for treating it as Waqf was absent.
The Bench emphasised that not every grave or Dargah automatically becomes Waqf property. Clarifying the distinction between a religious structure and a legally recognised endowment, it observed, “every grave or Dargah is not automatically Waqf property. Existence of a Muslim endowment is required.” The Court added that if a Dargah has never been surveyed, registered or notified as Waqf, “the Waqf Board ordinarily cannot assume automatic control merely because it is a Muslim Religious Institution. Jurisdiction depends upon proof that the property is legally Waqf.”
The Court ultimately held that the Board had failed to establish that the disputed property was legally a Waqf and had proceeded without completing the mandatory statutory requirements. Observing that appointment of a Mutawalli presupposes the existence of a valid Waqf, the Court held that the Board must first establish the necessary jurisdictional facts before exercising control over any institution.
The decision of the Court:
Allowing the appeal, the Court set aside the resolution of the Tamil Nadu Waqf Board and the consequential order appointing the Respondent as Mutawalli. The Court held that the Board had failed to establish that the disputed property was legally a Waqf property and had acted without completing the mandatory statutory requirements of survey and notification.
Case Title: Sarkar Syed Habibullah Sha Kahdari Arif Rabbani Hazarat Dargha Vs. The Tamil Nadu Waqf Board & Ors.
Case No.: C.M.A.No.2062 of 2025
Coram: Hon’ble Justice K.Govindarajan Thilakavadi
Advocate for the Petitioner: Adv. V. Anusha
Advocate for the Respondent: Adv. C.Shankar, Adv. P.Gurunathan, Adv. N.A.Nassir Hussain
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