Not every dargah can be considered a waqf property: Madras High Court
The Waqf Board cannot automatically assume control over every other Muslim religious institution unless the property housing a dargah (a tomb built over the grave
The Waqf Board cannot automatically assume control over every other Muslim religious institution unless the property housing a dargah (a tomb built over the grave of a revered religious figure) had been surveyed, registered and notified as a waqf (endowment), the Madras High Court has held. Justice K. Govindarajan Thilakavadi wrote: “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... The Board must first establish jurisdictional facts before exercising control over the institution.“ The judge held so while setting aside a resolution passed by the Tamil Nadu Waqf Board on August 23, 2023 for declaring Sarkar Syed Habibullah Sha Kahdari Arif Rabbani Hazarat Dargah located on Kamaraj Road at Triplicane in Chennai as a waqf property and appointing an individual named A.
Shahinsha as its Mutawalli. She allowed a civil appeal filed by M. Mohammed Azmathulaah, who claimed to be serving as the Mutawalli of the dargah for the past 40 years on hereditary basis. The appeal had been preferred against the refusal of the Tamil Nadu Waqf Tribunal to interfere with the resolution passed by the waqf board. Justice Thilakavadi concurred with the appellant’s counsel V. Anusha that there was no record to prove the land on which the dargah was located had been endowed by anyone or that it had been surveyed, registered as a waqf and notified in the official gazette as per law. In the absence of any such procedure having been followed in the present case, there would be no question of the property being considered as a waqf, the judge said.
“Conduct of the survey before declaring a property as a Waqf property is a sine qua non,” she added. Requisite for declaration as waqf “A dargah may be declared as waqf only if it satisfies the legal requirements under the Waqf Act, 1995. Mere religious use or existence of a tomb or shrine is not automatically sufficient. There must be permanent dedication of property by a Muslim for purposes recognised by Muslim law as pious, religious, or charitable, which is not found in the present case,” her verdict read. Pointing out the waqf board had failed to establish the property could be considered as a waqf due to its long use for religious purpose, the judge said: “Every grave or dargah is not automatically waqf property.
Existence of a Muslim endowment is required. Courts often distinguish a private family tomb and a Saint shrine maintained as a public religious endowment.”
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