Dargah Cannot Be Treated as Waqf Without Survey

By Team @ Mahendra Bhavsar & Co.
Reviewed by: Mahendra Bhavsar & Co. Legal Team
Last Updated: 09 June 2026

Quick Answer

In Sarkar Syed Habibullah Sha Khadari Arif Rabbani Hazarath Dargah v. Tamil Nadu Waqf Board & Others, decided on 5 June 2026, the Madras High Court held that a Dargah cannot automatically be treated as Waqf property merely because it is a Muslim religious institution. The Court emphasized that the statutory survey and notification process under the Waqf Act must be followed before Waqf status can be asserted. As a result, the Court set aside the Tamil Nadu Waqf Board’s appointment of a Mutawalli for the disputed Dargah.

Why This Judgment Matters

Disputes involving Dargahs, mosques, shrines and religious endowments often raise questions about ownership, management and the powers of Waqf Boards. This case addresses an important preliminary issue: when can a religious institution be treated as a Waqf under law?

The judgment clarifies that the mere existence of a Dargah or its religious use does not automatically establish Waqf status. Before a Waqf Board exercises supervisory control or appoints a Mutawalli, it must establish the necessary jurisdictional facts in accordance with the Waqf Act.

The decision is relevant for trustees, hereditary caretakers, religious institutions, government authorities and lawyers dealing with religious property disputes. It also highlights the importance of statutory procedures before administrative control over a religious institution is exercised.

Brief Facts

The dispute concerned the Sarkar Syed Habibullah Sha Khadari Arif Rabbani Hazarath Dargah situated at Triplicane, Chennai. The appellant claimed that his family had maintained and served the Dargah for more than four decades and that he functioned as its hereditary Mutawalli.

The Tamil Nadu Waqf Board, however, appointed the fifth respondent as Mutawalli. The appellant challenged that decision before the Tamil Nadu Waqf Tribunal, arguing that the Dargah property had never been legally established as Waqf property and that the Board lacked authority to appoint a Mutawalli.

The Tribunal dismissed the challenge and upheld the appointment. The appellant then approached the Madras High Court under Section 83(9) of the Waqf Act.

A significant aspect of the dispute was that the land was claimed to be Government poromboke land and there was disagreement regarding whether the property had ever been validly dedicated as Waqf or properly included in any statutory Waqf records.

Key Legal Issue

The principal questions before the Court were:

1. Can a Dargah be treated as Waqf property without completing the statutory survey and notification process?

2. Can the Waqf Board appoint a Mutawalli before establishing that the institution is legally a Waqf?

3. Was there sufficient material to establish the disputed property as a Waqf or a Waqf by user?

What the Court Held

The High Court found that the materials placed before it did not establish that the disputed property had been included in the statutory list of Auqaf. The Court observed that the procedures contemplated under the Waqf legislation for survey, examination and publication of Waqf properties had not been completed.

Survey Before Notification Is Mandatory

The Court explained that the statutory framework requires surveys to be conducted before publication of a list of Waqfs. According to the judgment, survey and notification are foundational requirements for identifying and declaring Waqf properties.

The Court specifically observed that conducting surveys before declaring property as Waqf is a sine qua non and that the relevant statutory provisions must be followed.

Religious Use Alone Is Not Enough

The Court rejected the assumption that a Dargah automatically becomes Waqf merely because it is a religious institution or contains a shrine or tomb.

The judgment states that there must be evidence of dedication or other legally recognised factors demonstrating the existence of a Waqf. The Court noted that mere religious use, by itself, is insufficient.

Waqf by User Not Established

The respondents also failed to establish, on the available record, that the property qualified as a Waqf by user. The Court found that evidence regarding ownership, dedication and long-standing use was insufficient for such a conclusion at this stage.

Appointment of Mutawalli Was Unsustainable

Since the existence of a legally established Waqf itself had not been demonstrated, the Court held that the Board’s appointment of a Mutawalli could not stand. The Board must first establish the jurisdictional basis for exercising control over the institution. Accordingly, the Board’s resolution and consequential appointment order were set aside.

Practical Takeaways

• Waqf Boards cannot automatically assume control over every Dargah.

• Statutory survey and notification procedures remain important before asserting Waqf status.

• Religious use alone may not be sufficient to establish a property as Waqf.

• Appointment of a Mutawalli generally presupposes the existence of a legally recognised Waqf.

• Documentary and historical evidence may be critical in Waqf property disputes.

• Competing claims regarding founders or hereditary management may require adjudication according to law.

What the Judgment Does Not Decide

• Whether the disputed property will ultimately be declared a valid Waqf.

• Whether either claimant is the lawful hereditary Mutawalli.

• The final ownership status of the land.

• Whether future survey proceedings may lead to a different conclusion.

• Any broader rights relating to other Dargahs or Waqf institutions.

Short Ratio

A Dargah cannot automatically be treated as Waqf property merely because it functions as a Muslim religious institution. Before the Waqf Board exercises control or appoints a Mutawalli, the statutory requirements concerning survey, identification and notification of Waqf property must be satisfied and supported by appropriate evidence.