Waqf Suit Without Gazette Notification Is Not Maintainable – Bombay High Court Declares Suit as ‘Abuse of Process’, Rejects Plea Seeking Declaration of Land as Waqf

“In the absence of any pleadings or prima facie material on record, there is a reason to infer that suit lands are not the Waqf properties.” –  Aurangabad Bench of the Bombay High Court delivered a detailed judgment, rejecting a suit filed under Section 83 of the Waqf Act, 1995, which sought a declaration of certain lands as Waqf property. The Court found the suit to be fundamentally defective, illusory, and barred by limitation, ultimately branding it as a "cleverly drafted abuse of process".

“Suit for Declaration of Waqf Property Filed 47 Years After Gazette Notification is Hopelessly Time-Barred”

In this civil revision application, the original defendant challenged the rejection of his application under Order VII Rule 11 of the Code of Civil Procedure by the Maharashtra State Waqf Tribunal. The core legal issue involved whether land not notified in the official government gazette as Waqf property can still be declared as such in a suit filed nearly five decades later.

The High Court allowed the revision and rejected the plaint, holding that "there is no public document or gazette notification to support the plaintiff’s claim", and thus, the very foundation of the suit was missing.

The suit pertained to 8648 square meters of land from Survey Nos. 51 and 52 (CTS No. 14503/1) situated at Usmanpura, Chhatrapati Sambhajinagar. The plaintiff, who claimed to be a devotee of Dargah Hajrat Shahanoor Hamvi (Reh.), alleged that the property was Waqf land and was illegally sold and encroached upon by various private parties, including the applicant, through unauthorized sale deeds executed since the 1980s.

The plaintiff relied on a letter dated 11.12.1979 and a corrigendum as evidence of inclusion of the land in Waqf records, and also on a 2009 administrative order of the Waqf Board. The Waqf Tribunal had rejected the applications under Order VII Rule 11, which led to this revision before the High Court.

Whether the land was notified as Waqf property in the official gazette under Section 5(2) of the Waqf Act?

Justice Brahme noted that: “Neither any Government gazette is placed on record to show Survey Nos. 51 and 52 are included in the list nor any material is placed on record to show that a procedure was followed for including those properties in the list.”

He categorically held that a letter dated 11.12.1979 or a corrigendum without gazette notification cannot convert land into Waqf property:

“It is a bold claim of the plaintiff and respondent no.18-Board that letter dated 11.12.1979 itself is a gazette, which cannot be countenanced.”

Is the Suit Barred by Limitation under Section 6 of the Waqf Act, 1995?

The Court noted that the gazette notification under Section 5(2) of the 1954 Waqf Act was published on 17.05.1973, while the present suit was filed on 23.09.2020, i.e., 47 years later.

“Such a suit is manifestly barred by time. No further enquiry on facts is required to hold that suit is barred by time.”

The Court further relied on T. Kaliamurthi v. Five Gori Thaikal Wakf, where the Supreme Court held:

“Section 107 of the Waqf Act cannot revive a barred claim or extinguished rights.”

The High Court concluded that Section 107, which excludes the Limitation Act for suits seeking possession of Waqf property, cannot revive a time-barred declaration suit filed decades later.

Whether Plaintiff Demonstrated Any Cause of Action?

Referring to the pleadings in the plaint, the Court found them "absurd" and noted that the plaintiff had “articulated the pleadings and prayers so as to overcome legal impediments of limitation, bar of Section 6 or 107 of the Act.”

“The cause of action shown... is the fall out of cleaver drafting... The bar of limitation is camouflaged by devious drafting of the plaint.”

Whether the Plaintiff Had Any Right to Challenge Registered Sale Deeds Without Specific Relief?

The Court took note that the sale transactions were executed in the 1980s and early 2000s, but the plaintiff did not seek cancellation of sale deeds.

“The interest created in the defendants long back is sought to be reopened in a manner which is impermissible in law.”

It cited the Supreme Court's observation in Madanuri Sri Rama Chandra Murthy vs. Syed Jalal:

“Since the list is prepared and published in the official Gazette by following due procedure... there is no scope for the plaintiff to get the matter reopened.”

Justice Brahme observed that neither Section 27 of the 1954 Act nor Section 40 of the 1995 Act was invoked by the Waqf Board to include the suit lands as Waqf property through proper procedure.

“It is not open for the Tribunal to treat the suit land as a Trust property… What cannot be done directly, cannot be done indirectly.”

The Court held that the plaint failed to disclose any cause of action, was cleverly drafted to avoid limitation, and abused the judicial process:

“This is a case of not only illusory cause of action by clever drafting but an abuse of process of law.”

Thus, invoking its power under Order VII Rule 11, the High Court set aside the Waqf Tribunal’s rejection of the application and ordered rejection of the plaint.

The Bombay High Court has set a clear precedent that mere letters or internal communications of Waqf Boards cannot substitute a government gazette notification for declaring land as Waqf property. The ruling reiterates that procedural compliance and limitation periods are not mere technicalities but are fundamental to the maintainability of suits under the Waqf Act.

The judgment is a stern message to litigants who attempt to revive long-dead claims through clever drafting, and a reminder that public records and statutory procedures govern rights in immovable properties.

Date of Decision: September 3, 2025