Waqf Board Cannot Appoint Mutawalli or Claim Jurisdiction Without Mandatory Survey and Gazette Notification, Holds Madras High Court

The Madras High Court set aside the Tamil Nadu Waqf Board's appointment of a Mutawalli for a Triplicane Dargah, holding that no jurisdiction arises without a statutory survey and gazette notification under the Waqf Act.

The Madras High Court has set aside the Tamil Nadu Waqf Board's resolution appointing a new Mutawalli for the Sarkar Syed Habibullah Sha Khadari Arif Rabbani Hazarath Dargah at Triplicane, Chennai, ruling that the Board had no jurisdiction to act because the property had never been surveyed or notified as Waqf under Sections 4 and 5 of the Waqf Act. Justice K. Govindarajan Thilakavadi, sitting singly, allowed the civil miscellaneous appeal filed by the incumbent Mutawalli, M. Mohammed Azmathulaah, and held that conducting a statutory survey before declaring any property as Waqf is a sine qua non. The judgment, pronounced on 5 June 2026, draws a clear line between a Dargah's religious character and its legal status as Waqf property — the two do not automatically coincide.

The Dispute Before the Court

The Dargah in question is described as approximately 240 years old and is situated at No. 2, Kamaraj Road, Triplicane, Chennai. The appellant, M. Mohammed Azmathulaah, claimed to have served as Mutawalli of the Dargah for 40 years on a hereditary basis, maintaining it from his family's own earnings. He had obtained an electricity connection in his name as Mutawalli after securing a No Objection Certificate from the Public Works Department on 2 December 2021.

The land on which the Dargah stands is classified as Government Poromboke land in R.S.No.2615/2, originally belonging to the Municipality under G.O.No.880 PWD dated 1 July 1974, and subsequently leased rent-free to the Bharat Scouts and Guides by the Public Works Department.

The fifth respondent, A. Shainsha, had filed a writ petition, W.P.No.21617 of 2023, before the Madras High Court seeking a direction to the Waqf Board to consider his representation for recognition as Mutawalli. Following a court direction, the Board conducted an enquiry and, by resolution No. 196/23 Na.Ka.No.11453/23/B6/Chennai dated 23 August 2023, appointed the fifth respondent as Mutawalli. A consequential order followed from the Chief Executive Officer of the Waqf Board on 14 September 2023.

The fifth respondent's claim rested on a registered trust deed dated 24 February 2010 executed at SRO, Royapuram, creating the Hazarat Syed Habibullah Sha Khaderi Trust. The Board directed registration of the Dargah under Section 36(4) of the Waqf Act, 1995, on the basis of this deed.

Azmathulaah challenged both the resolution and the consequential order before the Tamil Nadu Waqf Tribunal in O.A.No.83 of 2023, seeking a declaration that the Board's resolution was null and void and a permanent injunction restraining the respondents from disturbing his service at the Dargah. The Tribunal dismissed the application, upholding the appointment of the fifth respondent. The present appeal under Section 83(9) of the Waqf Act, 1995 as amended by the Waqf Amendment Act, 2025, followed.

The Legal Issue: Jurisdiction Without a Survey

The central question before the High Court was whether the Tamil Nadu Waqf Board could exercise jurisdiction over the Dargah — including appointing a Mutawalli and directing registration — when the property had not been surveyed or notified as Waqf under the statutory procedure prescribed by the Waqf Act.

Counsel for the appellant, Ms. V. Anusha, argued that Sections 4 and 5 of the Waqf Act, 1955 and the Waqf Act, 1995 lay down a mandatory procedure: a preliminary survey must be conducted, the survey commission must submit its report to the State Government, the State Government must direct a second survey by gazette notification, and only after this process is complete can the Waqf Board publish the list of Waqfs in the official Gazette. Without completing this process, no property can be treated as Waqf in law.

She further argued that the property in dispute was not listed in the “list of auqaf” — a mandatory precondition under Sections 6(1) and 7(1) of the Waqf Act, 1995 for approaching the Tribunal. The Tribunal therefore lacked jurisdiction to adjudicate the matter at all. She also contended that the trust deed relied upon by the fifth respondent was fraudulent, that the G.O.No.2095 cited by the Tribunal to conclude the land was a burial ground pertained to survey No. 2977 and not to the subject land in survey No. 2615/2, and that the documents marked as exhibits 9, 10 and 12 to 20 on behalf of the fifth respondent were self-serving representation letters with no evidence of acknowledgment or legal recognition.

Counsel for the Waqf Board, Mr. C. Shankar, maintained that once a property is intended for religious and charitable purposes it becomes Waqf property subject to the Board's supervisory control, and that the fifth respondent's appointment followed a proper enquiry. Counsel for the fifth respondent, Mr. N. A. Nassir Hussain, argued that the concept of a private mosque is unknown to Muslim law, that a Dargah accessible to the Muslim community constitutes a public Waqf by user, and that express dedication is not necessary where long public use is established.

How the Court Reasoned

Justice Govindarajan Thilakavadi began by examining whether the subject property appeared in the “list of auqaf.” None of the documents produced by respondents 1 to 3 and 5 indicated that the property was so listed. The court held that whether a property is Waqf cannot be decided by the Tribunal when the property is not specified in the list of auqaf, which is the mandatory requirement under Sections 6(1) and 7(1) of the Waqf Act, 1995 to approach the Tribunal.

On the question of Waqf by user, the court held that the issue remained at large and could not be resolved on the materials before it. The fifth respondent had also failed to establish that the trust deed dated 24 February 2010 was acted upon, and there was nothing on record to show that the land on which the Dargah stood belonged to the Dargah.

The court then set out the statutory procedure in detail. Under both the Waqf Act, 1954 and the Waqf Act, 1995, a preliminary survey must be conducted, the survey commission must submit its report to the State Government, the State Government must by gazette notification direct a second survey, and after disputes arising from the survey are settled, the State Government forwards the report to the Waqf Board. The Board then publishes the list of Waqfs with full particulars in the official Gazette. The court held that the notification under Section 5 of both Acts can only be published after the process under Section 4 is completed, making the survey a sine qua non.

It was an admitted fact that the land in dispute had not been surveyed or notified in the Government Gazette. The court rejected the respondents' submission that the survey was “under process” as insufficient, holding that the survey must be completed before any declaration of Waqf status.

The court also addressed the broader legal standard for a Dargah to constitute Waqf. Mere religious use or the existence of a tomb or shrine is not automatically sufficient. There must be a permanent dedication of property by a Muslim for purposes recognised by Muslim law as pious, religious or charitable. The founder must have had ownership or lawful control over the property and must have intended to divest himself permanently of ownership in favour of God. Dedication may be express through a deed or declaration, or implied by long public user and conduct. Relevant evidence includes a Waqf deed, revenue records, inam register entries, historical grants, gazette notifications, entries in Waqf survey reports, long-standing management as Waqf, and judicial decisions. None of these were established in the present case.

The court drew a distinction between a private family tomb and a saint's shrine maintained as a public religious endowment, observing that every grave or Dargah is not automatically Waqf property. The existence of a Muslim endowment must be established. 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. Jurisdiction depends upon proof that the property is legally Waqf.

On the direction to register the Dargah under Section 36(4) of the Waqf Act without a prior survey, the court held this to be impermissible. On the competing claims of the appellant and the fifth respondent to be the founder of the Dargah, the court held that this dispute must first be resolved by a competent Civil Court. Consequently, the appellant was not entitled to the relief of injunction.

The court concluded that the Tribunal had erred in concluding that the subject Dargah constituted Waqf solely on the presumption that the land functioned as a burial ground, particularly when the G.O.No.2095 cited pertained to a different survey number. The appointment of a Mutawalli presupposes the existence of a Waqf, and the Board must first establish jurisdictional facts before exercising control over any institution.

Outcome

The High Court allowed C.M.A.No.2062 of 2025. The resolution passed by the Tamil Nadu Waqf Board in No. 196/23 Na.Ka.No.11453/23/B6/Chennai dated 23 August 2023 and the consequential order passed by the Chief Executive Officer vide proceedings Se.Mu.Order.11453/23/Chennai dated 14 September 2023 were set aside. No costs were awarded. The connected miscellaneous petition, C.M.P.No.18113 of 2025, was closed.