Mere Existence of Dargah Does Not Automatically Confer Jurisdiction on Waqf Board: Madras HC [Read Judgment]

The Madras High Court has held that a statutory survey under Sections 4 and 5 of the Waqf Act is a prerequisite before any property can be declared or treated as Waqf property, and that the mere existence of a Dargah or its use for religious purposes does not automatically confer jurisdiction upon the Waqf Board over the institution or its administration.

The judgment was delivered on June 5, 2026, by Justice K. Govindarajan Thilakavadi, who set aside the orders through which the Tamil Nadu Waqf Board had appointed the fifth respondent as Mutawalli of the Dargha.

The dispute related to a 240-year-old Dargha in Triplicane, Chennai. The appellant claimed hereditary rights as Mutawalli and asserted that he and his family had managed and maintained the institution for over four decades. The Dargha stands on Government Poromboke land leased to the Bharat Scouts and Guides.

In 2010, the fifth respondent and others formed a trust claiming hereditary rights over the Dargha and subsequently sought recognition as Mutawalli. Pursuant to a direction issued by the Madras High Court, the Waqf Board conducted an enquiry and, relying on the appellant’s admission that he was not a member of the Dargha family, appointed the fifth respondent as Mutawalli in September 2023.

The appellant challenged the appointment before the Tamil Nadu Waqf Tribunal, contending that the land belonged to the Public Works Department, had never been surveyed or notified as Waqf property, and that the trust deed relied upon by the fifth respondent did not establish any legal right over the Dargha. The Tribunal dismissed the application and upheld the appointment, leading to the present appeal under Section 83(9) of the Waqf Act, 1995.

Before the High Court, the appellant further argued that the Tribunal had relied on a Government Order relating to a different survey number and that the documents produced by the fifth respondent were merely self-serving representations that had not been recognised or acted upon by any competent authority. It was also pointed out that the trust deed itself contained no specific reference to the subject Dargha.

The Waqf Board maintained that property dedicated for religious or charitable purposes falls within its supervisory jurisdiction and that the appointment had been made after a proper enquiry. The fifth respondent argued that a Waqf could arise by user and that the Dargha had existed from time immemorial.

Allowing the appeal, the High Court held that a Waqf is created through permanent dedication of property for recognised religious, pious or charitable purposes and cannot be inferred merely from religious use. The Court further held that the Waqf Tribunal lacked jurisdiction to adjudicate the dispute because the property had never been included in the list of auqaf, which is a prerequisite under Sections 6 and 7 of the Waqf Act.

The Court also found that the respondents had failed to establish that the property was a Waqf by user. The fifth respondent had not demonstrated that the trust deed had ever been acted upon or that the land on which the Dargha stood belonged to the Dargha itself. In the absence of such evidence, the disputed property could not be treated as Waqf by user.

On the statutory survey requirement, the Court held that a property can be lawfully treated as Waqf only after completion of the survey process contemplated under Sections 4 and 5 of the Act and publication in the list of auqaf. In the present case, it was undisputed that no such survey had been conducted and that the property had never been notified in the Official Gazette.

The Court further observed that where a Dargah has not been surveyed, registered or notified as Waqf property, the Waqf Board cannot assume jurisdiction merely because it is a Muslim religious institution. Jurisdiction depends upon proof that the property is legally Waqf, and the appointment of a Mutawalli ordinarily presupposes the existence of a legally recognised Waqf.

Noting that both the appellant and the fifth respondent claimed to be founders of the Dargha, the Court held that the dispute regarding foundership must first be decided by a competent Civil Court. Until such determination is made, the question of appointing a Mutawalli does not arise.

Accordingly, the Court allowed the appeal, set aside the Board’s resolution dated August 23, 2023 and the consequential order dated September 14, 2023, and closed the connected miscellaneous petition without costs.

Case Title: Sarkar Syed Habibullah Sha Kahdari Arif Rabbani Hazarat Dargha v. The Tamil Nadu Waqf Board and Others, C.M.A. No. 2062 of 2025.

[Read Judgment]