Waqf Status Cannot Be Assumed From a Shrine’s Existence, Rules Madras High Court

The Madras High Court has reaffirmed that the existence of a Dargah or shrine by itself does not automatically convert a property into waqf property. Setting aside a decision of the Tamil Nadu Waqf Board appointing a Mutawalli for a Chennai Dargah, the Court held that waqf status must be established strictly in accordance with the requirements of the Waqf Act and cannot rest merely on religious use or long-standing belief.

Justice K. Govindarajan Thilakavadi delivered the ruling while allowing an appeal filed by the representative of the Sarkar Syed Habibullah Sha Khadari Arif Rabbani Hazarat Dargah in Triplicane. The challenge was directed against orders of the Tamil Nadu Waqf Board and a Waqf Tribunal that had recognised the institution as a waqf and appointed a Mutawalli.

The Court examined whether the Dargah had been legally established as a waqf. It observed that under Muslim law and the Waqf Act, a waqf arises through permanent dedication of property for religious, charitable, or pious purposes. While waqf by user is recognised in law, its existence must be proved through evidence. The Court found no material demonstrating such dedication, nor any proof that the disputed property had been included in the statutory list of auqaf.

A significant aspect of the judgment was its emphasis on the mandatory survey process under Sections 4 and 5 of the Waqf Act. The Court held that publication of a statutory survey and notification is a prerequisite for recognising property as waqf. Since no such survey or notification existed in relation to the disputed land, the Board lacked the jurisdictional foundation to exercise control over the institution.

Holding that appointment of a Mutawalli necessarily presupposes the existence of a legally recognised waqf, the Court quashed the Board’s orders. However, it left competing claims regarding management and founder rights to be determined before the appropriate civil court.

Case: Sarkar Syed Habibullah Sha Khadari Arif Rabbani Hazarat Dargah v. Tamil Nadu Waqf Board.