Introduction:
The Madras High Court, in Sarkar Syed Habibullah Sha Kahdari Arif Rabbani Hazarat Dargha v. Tamil Nadu Waqf Board and Others (2026 LiveLaw (Mad) 248), delivered a significant judgment concerning the scope of the powers of the Waqf Board and the legal requirements for declaring a property as Waqf under the Waqf Act, 1995. Justice Govindarajan Thilakavathi set aside an order of the Tamil Nadu Waqf Board that had treated a 240-year-old Dargah as Waqf property and appointed a Mutawalli for its administration without establishing the legal foundation necessary for such a declaration.
The dispute revolved around the status of the Sarkar Syed Habibullah Sha Kahdari Arif Rabbani Hazarat Dargah, an ancient religious shrine that had existed for nearly two and a half centuries. The appellant, who claimed to be the Mutawalli and caretaker of the Dargah, challenged the actions of the Tamil Nadu Waqf Board, alleging that the Board had unlawfully interfered with the administration of the shrine by appointing another individual as Mutawalli and by assuming that the property on which the Dargah stood was Waqf property.
The controversy raised important questions regarding the creation and recognition of Waqf under Muslim law, the statutory procedures prescribed under the Waqf Act, 1995, and the extent to which religious institutions can be brought under the control of the Waqf Board. At the heart of the matter was whether the mere existence of a Dargah or shrine dedicated to a revered Muslim saint automatically confers upon it the status of Waqf property.
The case also highlighted the distinction between religious use of property and legal dedication of property as Waqf. While Waqf occupies a central place in Islamic jurisprudence as a permanent dedication of property for religious, pious, or charitable purposes, the Court was required to determine whether such dedication had been established in the present case and whether the mandatory statutory requirements under the Waqf Act had been complied with.
The judgment assumes broader significance because disputes regarding mosques, dargahs, graveyards, and religious institutions frequently arise in different parts of the country. The ruling provides clarity on the circumstances under which a religious institution may be treated as Waqf property and reinforces the necessity of following the statutory process before the Waqf Board can exercise jurisdiction over any property.
Arguments of the Parties:
The appellant contended that the Dargah was approximately 240 years old and had been maintained by his family for generations from their own personal resources. According to him, his family had continuously looked after the shrine without receiving any assistance from the Waqf Board or any religious endowment. He asserted that he had been functioning as the Mutawalli and caretaker of the Dargah and that the Board’s decision to appoint another individual as Mutawalli was arbitrary and beyond its legal authority.
The appellant further argued that the land on which the Dargah was situated did not belong to any Waqf institution. Instead, he maintained that the property belonged to the Public Works Department (PWD). To substantiate this claim, he relied upon official records and pointed out that he had obtained a No Objection Certificate from the Public Works Department for obtaining an electricity connection in his own name. According to him, these circumstances demonstrated that the government itself recognized the ownership of the land as vesting in the Public Works Department rather than in any Waqf institution.
The appellant also challenged the legality of the Board’s actions on procedural grounds. He submitted that the Waqf Board had declared the property to be Waqf property without conducting the mandatory survey contemplated under the Waqf Act, 1995. He argued that the statutory scheme requires identification, survey, registration, and notification of Waqf properties before the Board can assume jurisdiction over them. Since these requirements had not been fulfilled, the Board’s declaration was legally unsustainable.
On the other hand, the Tamil Nadu Waqf Board defended its decision. The Chairman, Chief Executive Officer, and Superintendent of the Board contended that the appellant could not claim hereditary rights over the administration of the Dargah. They argued that he did not belong to the family traditionally associated with the institution and therefore lacked any legal basis to claim the office of Mutawalli.
The Board further submitted that the area surrounding the Dargah had historically been used as a burial ground. According to the Board, the property was subsequently transferred to the Municipality and later came under the control of the Public Works Department. However, it was argued that the religious and charitable character of the property remained unaffected by such transfers.
A central plank of the Board’s argument was that once property is dedicated for religious or charitable purposes recognized under Muslim law, it assumes the character of Waqf. The Board maintained that the Dargah served religious purposes and was therefore subject to the supervisory jurisdiction of the Waqf Board. On this basis, it claimed authority to regulate the administration of the institution and appoint a Mutawalli.
The Executive Engineer representing the Public Works Department adopted a different position. The Department categorically asserted ownership over the land and contended that the property could not be characterized as Waqf merely because a Dargah existed upon it. The Department emphasized that no documentary evidence existed to demonstrate dedication of the land as Waqf property.
The private respondent, who had been appointed by the Board as Mutawalli, also sought to justify the Board’s action. He claimed that his family had historically exercised control over the Dargah. According to him, a trust known as Hazarat Syed Habibullah Sha Khaderi Trust had been created through a registered trust deed in 2010, and this trust reflected the religious and charitable nature of the institution. He argued that the administration of the shrine was therefore rightly brought under formal management and supervision.
The dispute thus involved competing claims regarding ownership, management, hereditary rights, and the legal status of the property. While the appellant and the Public Works Department disputed the existence of any Waqf, the Board and the private respondent argued that the religious nature of the institution justified recognition as Waqf property.
Court’s Judgment:
Justice Govindarajan Thilakavathi carefully examined the legal principles governing Waqf under Muslim law and the statutory framework established by the Waqf Act, 1995. The Court began by reiterating the fundamental concept of Waqf. Under Muslim law, a Waqf is created when a person professing Islam permanently dedicates movable or immovable property for purposes recognized as pious, religious, or charitable. Such dedication results in the property being permanently set apart for the specified religious or charitable object.
The Court acknowledged that in certain circumstances, the existence of a Waqf may be inferred from long and uninterrupted use for religious or charitable purposes. However, such inference cannot be drawn mechanically in every case. The existence of a religious structure alone does not conclusively establish the existence of a Waqf.
The Court emphasized that the Waqf Act, 1995 prescribes a detailed mechanism for identifying and recognizing Waqf properties. The legislation requires surveys to be conducted, records to be maintained, and notifications to be issued. These procedural safeguards are intended to ensure that properties are not arbitrarily brought within the control of the Waqf Board without adequate legal basis.
Upon examining the materials placed before it, the Court found that the property in question was recorded in official documents as belonging to the Public Works Department. The records also indicated that the property had been leased to Bharat Scouts and Guides. These circumstances raised serious doubts regarding the Board’s assertion that the land constituted Waqf property.
Significantly, the Court observed that the documents relied upon by the Waqf Board failed to establish that the property had been included in the statutory list of Auqaf. The Court noted that inclusion in the list of Auqaf is an important statutory requirement and serves as evidence of compliance with the procedures contemplated by the Act.
The Board attempted to justify its position by stating that a survey of the property was underway. However, the Court found this argument unpersuasive. It held that the survey process is not a mere formality to be undertaken after a declaration is made. Rather, the survey constitutes a prerequisite for determining whether a property can lawfully be treated as Waqf property. Consequently, the Board could not rely upon an ongoing survey to validate an earlier declaration.
One of the most important observations made by the Court concerned the status of Dargahs and graves under the law. The Court categorically stated that every grave or Dargah cannot automatically be regarded as Waqf property. The existence of a Muslim religious institution does not, by itself, confer jurisdiction upon the Waqf Board.
The Court drew attention to the distinction often recognized in law between a private family tomb and a shrine maintained as a public religious endowment. While the latter may satisfy the requirements of a Waqf, the former may not. The determining factor is the existence of a legally recognizable dedication or endowment rather than the mere religious character of the site.
The Court further held that jurisdiction of the Waqf Board depends upon proof that the property has legally acquired the status of Waqf. Such proof may arise from documents of dedication, statutory records, historical evidence, or circumstances demonstrating permanent dedication for recognized religious or charitable purposes. In the absence of such proof, the Board cannot assume control merely because the property is associated with Islamic religious practices.
Applying these principles to the facts of the case, the Court concluded that no evidence had been produced to establish permanent dedication of the land as Waqf property. The Board failed to demonstrate compliance with the mandatory statutory requirements, including survey, registration, and notification. Furthermore, the official records indicating ownership by the Public Works Department remained unrebutted.
The Court therefore held that the legal requirements necessary for declaring the Dargah as Waqf property had not been satisfied. Mere religious use, the existence of a shrine, or historical significance was insufficient to confer Waqf status in the absence of evidence of dedication and compliance with statutory procedures.
Consequently, the Court found that the Tamil Nadu Waqf Board had exceeded its authority in declaring the property as Waqf and in exercising supervisory jurisdiction over it. The order of the Waqf Board, as well as the decision of the Tribunal upholding it, were set aside.
The judgment stands as an important reaffirmation of the rule of law in the administration of religious endowments. It underscores that statutory bodies must act strictly within the limits of their authority and that religious institutions cannot be brought under regulatory control without satisfying the legal requirements prescribed by law. The decision also reinforces the principle that the existence of a Dargah, grave, or shrine does not automatically create a Waqf, and that proof of dedication and adherence to statutory procedures remain indispensable prerequisites for recognizing property as Waqf under the Waqf Act, 1995.