Every Dargah Not Waqf Property Merely Due to Religious Use: Madras High Court

"Mere religious use or existence of a tomb or shrine is not automatically sufficient" to treat a property as waqf, the Madras High Court has held, setting aside a Tamil Nadu Waqf Board decision appointing a Mutawalli for a Dargah in Chennai's Triplicane and observing that a Dargah can be declared waqf only if it satisfies the legal requirements prescribed under the Waqf Act.

The bench of Justice K Govindarajan Thilakavadi passed the order while allowing an appeal filed by the representative of Sarkar Syed Habibullah Sha Khadari Arif Rabbani Hazarat Dargah, challenging a Tamil Nadu Waqf Tribunal order which had upheld the Board's appointment of A. Shainsha (the fifth respondent) as Mutawalli of the shrine.

The dispute relates to a Dargah situated on Kamaraj Road in Triplicane. The appellant claimed that his family had been maintaining and serving the Dargah for more than 40 years and that the land on which the shrine stands belongs to the Public Works Department. He challenged the Waqf Board's August 2023 resolution appointing the fifth respondent as Mutawalli and the consequential order issued in September 2023.

The Waqf Board defended its decision, contending that the institution was a waqf and that the fifth respondent had been appointed after a proper enquiry. The Public Works Department, however, maintained that the land was Government poromboke land and had been allotted to the Bharat Scouts and Guides.

Can a Dargah be treated as waqf merely because it exists?

The high court said that while a waqf may come into existence through permanent dedication of property for religious, charitable or pious purposes, or in certain cases through long public user, the legal status of waqf cannot be presumed merely from the existence of a shrine.

Court observed that there must be permanent dedication of property by a Muslim for purposes recognised by Muslim law as pious, religious or charitable. Such dedication was not established in the present case.

The judge further noted that every grave or Dargah cannot automatically be treated as waqf property. Courts, the judgment said, must distinguish between a private family tomb and a saint's shrine maintained as a public religious endowment.

Was the Dargah legally established as waqf?

Examining the records, court found that none of the documents produced by the Waqf Board or the fifth respondent showed that the property had been included in the statutory list of auqaf. It also held that the claim that the property had become a "waqf by user" remained unproven.

According to the court, there was no evidence showing that the land belonged to the Dargah or that the alleged trust deed relied upon by the fifth respondent had ever been acted upon. The Court said the respondents had failed to establish the necessary ingredients required to treat the property as waqf by user.

Why is a waqf survey mandatory?

A significant part of the judgment deals with the statutory scheme under the Waqf Act, 1995 (as amended by the Waqf Amendment Act, 2025). Court held that conducting a survey under Sections 4 and 5 of the Waqf Act is a sine qua non before any property can be declared waqf property.

The judgment notes that both the Waqf Act, 1954 and the Waqf Act, 1995 require a survey, preparation of reports and publication of a list of waqfs in the Official Gazette. Only after completion of this process can a property be recognised as waqf property.

Court recorded that it was an admitted position that no such survey had been conducted and no notification had been issued in respect of the disputed property. The respondents' contention that the survey process was still underway could not justify treating the property as waqf before completion of the statutory exercise, court held.

Could the Waqf Board appoint a Mutawalli before establishing waqf status?

Court answered this question in the negative and held that appointment of a Mutawalli necessarily presupposes the existence of a waqf.

"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," court observed, adding that the Board must first establish jurisdictional facts before exercising control over any institution.

Holding that the Board's resolution dated August 23, 2023 and the consequential order dated September 14, 2023 were unsustainable, court set both aside.

Court, however, declined to grant an injunction sought by the appellant. Noting that both the appellant and the fifth respondent claimed rights as founders of the Dargah, it said that dispute would have to be resolved in accordance with law before a competent civil court.

Case Title: Sarkar Syed Habibullah Sha Kahdari Arif Rabbani Hazarat Dargha v. Tamil Nadu Waqf Board & Others.

Order Date: June 5, 2026

Bench: Justice K. Govindarajan Thilakavadi