Ziyarat Is Wakaf by Its Nature, No Formal Notification Required — J&K&L High Court

“Ownership of Land Doesn’t Override Religious Character of Ziyarat; Wakaf by User Exists Independently of Revenue Titles” —  In a significant verdict concerning the legal status of religious properties, the High Court of Jammu & Kashmir and Ladakh at Srinagar, in its judgment dated 5th June 2025, delivered by a division bench of Justice Sanjeev Kumar and Justice Sanjay Parihar, upheld the power of the J&K Wakaf Board to take over the management of the Ziyarat Sharif Syed Khazir Sahib at Rayil, Gund, Ganderbal, dismissing the appeal filed by the Intizamiya Committee Dargah.

The Court observed that “a Ziyarat, by its very religious character and public usage, constitutes a Wakaf under Section 3(d) of the Jammu & Kashmir Wakafs Act, 1978, and does not require formal notification to be treated as such.”

The judgment came in LPA No. 187 of 2023, where the appellants challenged the Single Judge's order refusing to interfere with the Wakaf Board's decision to assume management of the shrine.

“Ziyarat, Dargah, and Graveyard Are Wakafs by User — No Need for Formal Declaration” — High Court Clarifies Section 3(d) of Wakafs Act

The Court delivered a categorical interpretation of Section 3(d) of the J&K Wakafs Act, 1978, stating that:

“From a plain reading of the definition of ‘Wakaf’, it is crystal clear that Wakaf would mean permanent dedication by a person professing Islam of any property, movable or immovable, for any purpose recognized by Muslim law or usage as religious, pious, or charitable. It also includes Wakaf by user, such as Masjid, Idgah, Dargah, Graveyard, Rauza, and similar properties.”

The bench emphasized that “a Dargah or Ziyarat, by virtue of being a religious place revered by the public, becomes Wakaf by its very usage, irrespective of whether a formal notification has been published or not.”

“Gazette Notification Under Section 6 Is Merely Directory — It Does Not Create Wakaf” — Court Rejects Appellant’s Core Argument

Refuting the appellant’s argument that no valid Wakaf exists without a formal Gazette notification under Section 6, the Court stated unequivocally:

“Section 6 does not create a Wakaf; it only mandates the publication of a list of existing Wakafs based on a survey conducted under Section 4. The very existence of the religious character of the property suffices to constitute it as Wakaf by user.”

The bench further observed: “If the Ziyarat, by usage and religious purpose, qualifies as Wakaf, then absence or presence of a Gazette notification does not affect its character.”

“Ownership of Underlying Land Does Not Diminish the Religious Character of the Ziyarat” — Court Advises Civil Remedy for Land Dispute

The Court addressed the appellant’s claim that the Ziyarat was situated on Khasra No. 323, a property recorded in their private ownership, by clarifying:

“If indeed the Ziyarat or any structure stands within Khasra No. 323, the appellants are at liberty to approach the revenue authorities for demarcation or file a civil suit. However, this ownership claim cannot be used to challenge the Wakaf Board’s control over the religious institution itself, particularly when the Ziyarat is recorded as part of Khasra No. 322 min, which is notified as Wakaf under SRO 510 of 1985.”

The bench highlighted: “The proprietary title over land is a separate issue governed by revenue and civil law, but the religious character of a Ziyarat transcends such titles when it comes to Wakaf by user.”

“Failure to Object in 1985 Wakaf Survey Is Fatal to the Appellant’s Case” — Court Finds No Procedural Illegality

Reinforcing the legitimacy of the Wakaf Board’s actions, the Court noted:

“When the survey of Wakafs in the District Ganderbal was conducted under Section 4, no objection was raised by the appellants regarding the status of the Ziyarat. The survey process culminated in SRO 510 of 1985. The appellants, having failed to challenge this foundational notification, cannot now dispute the Wakaf Board’s authority to manage the notified Wakaf.”

The Court emphasized that “this legal silence for nearly four decades severely weakens the appellants’ current challenge.”

The Court concluded: “For all these reasons, and for the reasons given by the writ court, we find no merit in this appeal. The Ziyarat by its nature is a Wakaf by user, requiring no formal declaration. The appellants may pursue civil remedies if they believe that the religious structure is encroaching upon their private land in Khasra No. 323, but they have no locus to challenge the Wakaf Board’s management over the Ziyarat in Khasra No. 322.”

The appeal was accordingly dismissed, with the Court leaving open the right of the appellants to seek redress regarding their claimed proprietary land through appropriate legal channels.

Date of Decision: 05 June 2025