The Supreme Court of India has held that conducting a survey u/s 4 of the Waqf Act, 1954, before declaring a property as “Wakf property” is the sine qua non, an indispensable requirement. The court dismissed the appeal filed against the Madras High Court’s decision wherein the court set aside the single judge’s order declaring the suit land as Wakf property.
The court held that in the absence of a survey conducted u/s 4 of the Waqf Act, the mere issuance of notification under the Act would not constitute a valid Wakf. The court said, “In the absence of such a material, the mere issuance of the notification under Section 5 of the Act would not constitute a valid wakf in respect of the suit land.”
The appellant, Salem Muslim Burial Ground Protection Committee, challenged the Madras High Court’s decision wherein the court set aside the single judge’s decision declaring the suit land as Wakf property. The appellant contended that “once a wakf is always a wakf” and that mere non-burial of dead bodies on the suit land for the past 60 years “would not alter its nature so as to confer any right upon the claimants respondents.”
The court noted that under Muslim law, a wakf could be created in several ways but primarily dedication of any movable and immovable property by a person professing Islam for any purpose recognized by Muslim law as a pious, religious or charitable purpose. The court further noted that in the absence of such dedication, it could also be presumed to have come into existence by long use.
The court observed that “In the case at hand, there is no iota of evidence from the very inception as to any express dedication of the suit land.” Therefore, the court ruled out the creation of Wakf through dedication. Thereafter, the court noted that the only issue that remains is whether the suit land constitutes a Wakf property due to its long use as a burial ground, a practice which has been stopped for over 60 years.
The court noted, “There is even no concrete evidence on record to prove that the suit land prior to the year 1900 or 1867 was actually being used as a burial ground (kabristan).”
The court said that the claims that the suit land was a burial ground prior to 1900, or 1867, is insufficient to establish a Wakf through use in the absence of evidence, thus it cannot constitute a Wakf. The court further noted that the records do not indicate that the land was used as a Muslim burial ground, instead, it was recorded that the suit land was a “rudrabhoomi” which denotes a Hindu cremation ground and not a kabristan.
The court held, “Therefore, the suit land was not proved to be a wakf land by long usage also. There is no evidence to prove creation of a wakf of the suit land either by dedication or by usage.”
The court further noted that another limb of the appellant’s argument is that it was declared as a Wakf property through a notification dated April 29, 1959. The court observed that such notifications must be in consonance with the Waqf Act.
The court noted that on a plain reading of the Waqf Act, 1954, and the Waqf Act, 1995, it is revealed that to issue a notification declaring the list of Wakfs can only be published after completing the “two surveys, settlement of disputes arising thereto and the submission of the report to the State Government and to the Board.”
Therefore, the court held that “conducting of the surveys before declaring a property a wakf property is a sine qua non (an indispensable requirement).”
The court further said, “In the case at hand, there is no material or evidence on record that before issuing notification under Section 5 of the Waqf Act, 1954, any procedure or the survey was conducted as contemplated by Section 4 of the Act.” Therefore, the court held that the notification dated April 29, 1959, declaring the suit land as a Wakf is not a “conclusive proof conclusive proof of the fact that the suit land is a wakf property.”
The court further said that the Wakf Board is a statutory body and therefore, the official Gazette is bound to carry any notification at the instance of the Wakf Board, however, the State Government is not bound by such a notification just because it has been published.
The court said, “that the notification, if any, published in the official Gazette at the behest of the Waqf Act giving the lists of the wakfs is not a conclusive proof that a particular property is a wakf property especially, when no procedure as prescribed under Section 4 of the Waqf Act has been followed in issuing the same.”
The court held, “In view of the aforesaid facts and circumstances, we do not find any substance in the argument that the suit land is or was a wakf property and as such would continue to be a wakf always.”
“In the absence of any evidence of valid creation of a wakf in respect of the suit property, it cannot be recognized as a wakf so as to allow it to be continued as a wakf property irrespective of its use or disuse as a burial ground,” the court added.
