Mere Existence Of Dargah Doesn't Grant Jurisdiction To Waqf Board; Statutory Survey Under Sections 4 & 5 Is Mandatory: Madras High Court

"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 Board must first establish jurisdictional facts before exercising control over the institution," Madras High Court, in a significant ruling, has held that the Tamil Nadu Waqf Board cannot assume automatic supervisory jurisdiction over a Dargah merely because it is a Muslim religious institution.

A bench of Justice K. Govindarajan Thilakavadi observed that the conduct of a preliminary survey and subsequent notification under Sections 4 and 5 of the Waqf Act, 1995, are mandatory prerequisites before a property can be legally declared as Waqf.

The Court emphasized that the Board must establish "jurisdictional facts"—namely, that the property is indeed a Waqf—before exercising powers such as the appointment of a Mutawalli. The ruling came while setting aside an order of the Tamil Nadu Waqf Tribunal which had upheld the Board’s decision to appoint a new Mutawalli for a Dargah situated on land claimed by the Public Works Department (PWD).

The dispute centered on the "Sarkar Syed Habibullah Sha Khadari Arif Rabbani Hazarath Dargah" in Triplicane, Chennai. The appellant claimed his family had maintained the 240-year-old Dargah for decades on land belonging to the PWD. However, the Waqf Board, acting on a representation and a trust deed, declared the property as Waqf and appointed the 5th respondent as the Mutawalli.

The appellant challenged this before the Waqf Tribunal, arguing that the land was Government Poromboke and no statutory survey had been conducted to declare it Waqf. The Tribunal dismissed the application, prompting the present appeal under the Waqf Act, 1995 (as amended by the Waqf Amendment Act, 2025).

The primary question before the court was whether the Waqf Board could register a property under Section 36(4) and appoint a Mutawalli without a prior statutory survey under Sections 4 and 5 of the Act. The court was also called upon to determine whether mere religious usage or the existence of a shrine is sufficient to automatically classify a property as Waqf.

Statutory Survey Is A Sine Qua Non For Waqf Declaration

The Court observed that under the Waqf Act, the procedure for declaring a property as Waqf is rigorous. A preliminary survey must be conducted by a Survey Commission, followed by a report to the State Government and a subsequent notification in the Official Gazette. The bench noted that a plain reading of the Act reveals that notification under Section 5 is only possible after the completion of the process laid down under Section 4.

"Therefore, conducting of the surveys before declaring a property a Waqf property is a sine qua non. In the case at hand, it is admitted fact that the land in dispute was not surveyed and notified in the Government Gazette."

Waqf Board Cannot Assume Automatic Supervisory Control

The bench clarified that the Waqf Board's jurisdiction depends entirely upon proof that the property is legally Waqf. It held that the Board cannot bypass statutory procedures to assume control over an institution. The Court found that in the absence of a survey or a legal document of dedication, the Board’s direction to register the Dargah under Section 36(4) was "impermissible in law."

"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."

Mere Religious Use Does Not Automatically Constitute Waqf

The Court delved into the requirements for creating a Waqf under Muslim Law, noting that it requires a permanent dedication of property by a person professing Islam for pious or charitable purposes. The bench observed that every grave or Dargah is not automatically Waqf property, and the law distinguishes between private family tombs and public religious endowments.

"A Dargah may be declared as Waqf only if it satisfies the legal requirements under the Waqf Act. Mere religious use or existence of a tomb or shrine is not automatically sufficient. There must be permanent dedication of property."

Land Ownership Dispute Must Be Resolved By Civil Court

The Court noted that the 4th respondent (PWD) explicitly claimed the land was "Government Poromboke" and had been allotted to the Bharat Scouts and Guides. Since both the appellant and the 5th respondent claimed to be founders or hereditary managers, the bench held that such complex disputes regarding title and management must first be resolved by a competent Civil Court.

"The Board must first establish jurisdictional facts before exercising control over the institution. Hence, the resolution passed by the 1st respondent and the consequential order passed by the 2nd respondent is unsustainable and liable to be set aside."

Allowing the appeal, the High Court set aside the Waqf Board’s resolution dated August 23, 2023, and the consequential order dated September 14, 2023, which had appointed the 5th respondent as Mutawalli. The Court concluded that since the land had not been surveyed or notified as Waqf, the Board’s actions lacked legal foundation. However, the Court declined the relief of injunction to the appellant, stating the underlying dispute must be settled through appropriate legal channels.

Date of Decision: 05 June 2026