The Madras High Court recently clarified that the mere presence of a Dargah does not automatically categorize the land it occupies as Waqf property under the control of the Waqf Board. This ruling came in the case of Sarkar Syed Habibullah Sha Kahdari Arif Vs TN Waqf Board, where Justice K. Govindarajan Thilakavadi emphasized the necessity of legally establishing ownership over such lands.
In the judgment delivered on June 5, Justice Thilakavadi articulated that the presence of a Dargah alone does not confer jurisdiction upon the Waqf Board unless it is legally recognized as Waqf property. The court underscored that for land to be considered Waqf property, there must be a permanent dedication by a Muslim for a pious, religious, or charitable purpose as per Muslim law.
Background of the Case
The ruling was made while overturning a resolution by the Tamil Nadu Waqf Board, which had appointed a Mutawalli for the Sarkar Syed Habibullah Sha Khadari Arif Rabbani Hazarath Dargah located at Triplicane in Chennai and directed its registration under the Waqf Act without a prior survey. The appellant, a family member maintaining the Dargah for over 40 years, contested the Board’s decision to appoint A. Shainsha as Mutawalli. The appellant argued that the land was owned by the Public Works Department, not the Waqf Board, and that the proper procedures under the Waqf Act were not followed.
Positions of the Parties Involved
The Tamil Nadu Waqf Board contended that the land originally belonged to the Dargah and was later acquired by municipal authorities and the Public Works Department. They claimed that the Dargah’s registration under Section 36(4) of the Waqf Act was still in progress. However, the Public Works Department asserted that the land was classified as government poramboke land and had been allocated to Bharat Scouts and Guides rent-free. They also accused the family of fraudulently registering the Dargah land without consent.
Court’s Observations and Ruling
The Court found no evidence to show the property was included in the list of auqaf, nor had it been surveyed or notified as Waqf property in the Government Gazette. Justice Thilakavadi stated, “Conducting surveys before declaring a property as Waqf is a sine qua non.” The Court noted the need to differentiate between private family tombs and saint shrines maintained as public religious endowments.
Furthermore, the Court stated that if a Dargah has never been surveyed, registered, or notified as a Waqf, the Waqf Board cannot assume automatic control solely because it is a Muslim religious institution. The Court also highlighted that jurisdictional facts must be established by the Waqf Board before exercising control over such institutions and that appointing a Mutawalli usually presupposes the existence of a Waqf.
Conclusion
The Court concluded that since both the appellant and the respondents claimed rights over the Dargah, the dispute should be resolved by a competent civil court. Consequently, the Court allowed the appeal and set aside the Waqf Board’s directions to appoint a Mutawalli and register the Dargah. Justice Thilakavadi remarked, “There is no legal document proving the property was dedicated as Waqf. Therefore, the Board’s directive for registration under Section 36(4) of the Act without prior survey is impermissible.”
Advocate V. Anusha represented the appellant, while Advocate C. Shankar appeared for the Tamil Nadu Waqf Board. Additional Government Pleader P. Gurunathan represented the Public Works Department, and Advocate N.A. Nassir Hussain appeared for the individual maintaining the Dargah.
