The Madras High Court recently held that the mere existence of a Dargah does not automatically bring the land on which the structure is situated under the control of the Waqf Board [Sarkar Syed Habibullah Sha Kahdari Arif Vs TN Waqf Board]..Justice K Govindarajan Thilakavadi said that the Waqf Board has to legally establish ownership over the land.“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 Court said in its judgment of June 5.Every grave or Dargah is not automatically Waqf property, the judge underscored.There must be permanent dedication of property by a Muslim for a pious, religious or charitable purpose recognised by Muslim law, the Court made it clear.The observations were made while setting aside a Tamil Nadu Waqf Board resolution which had appointed a Mutawalli for the Sarkar Syed Habibullah Sha Khadari Arif Rabbani Hazarath Dargah at Triplicane in Chennai and directed registration of the Dargah under Waqf Act without prior survey..The case concerned a Dargah situated at Kamaraj Road in Triplicane. The appellant, represented by Mutawalli, claimed that the Dargah was 240 years old and had been maintained by his family for over 40 years.He challenged the Waqf Board’s decision to appoint A Shainsha as Mutawalli of the Dargah. He argued that the land belonged to the Public Works Department and not the Waqf Board. He also contended that the Board had no authority to declare the property as Waqf property or appoint another Mutawalli without following the procedure under the Waqf Act.The Tamil Nadu Waqf Board opposed the appeal. It argued that the land and surrounding areas originally belonged to the Dargah and later came into the possession of municipal authorities and the Public Works Department. It also said that registration of the Dargah under Section 36(4) of the Waqf Act was under process..However, the Public Works Department submitted that the land was classified as government poramboke land and had been allotted to Bharat Scouts and Guides rent-free. It also alleged that the family had fraudulently registered the Dargah land without its concurrence.The Court found that there was no material to show that the property had been included in the list of auqaf. It also noted that the land had not been surveyed or notified as Waqf property in the Government Gazette. “Conducting of the surveys before declaring a property a Waqf property is a sine qua non,” the Court stated..It further said that every grave or Dargah cannot automatically be treated as Waqf property and courts must distinguish between a private family tomb and a saint shrine maintained as a public religious endowment.“If a Dargah has never been surveyed, registered or notified as Waqf, the Waqf Board ordinarily cannot assume automatic control merely because it is a Muslim Religious Institution.”.The Court held that the Waqf Board must first establish jurisdictional facts before exercising control over such an institution. It added that appointment of a Mutawalli ordinarily presupposes the existence of a Waqf.The Court also said that since both the appellant and the respondents were claiming rights over the Dargah, the dispute must first be resolved by a competent civil court..Accordingly, the Court allowed the appeal and set aside the Waqf Board’s directions to appoint Mutawalli and register the Dargah."There is no legal document that the property was dedicated as Waqf. Therefore, the direction of the Board to the 5th respondent for registration of the Dargah under Section 36 (4) of the Act without prior survey is impermissible," the Court ruled..Advocate V Anusha appeared for the appellant..Advocate C Shankar appeared for the Tamil Nadu Waqf Board.Additional Government Pleader P Gurunathan appeared for the Public Works Department.Advocate NA Nassir Hussain appeared for the person maintaining dargah..[Read Judgment]
