Mere publication of notification not enough to declare wakf property: SC

The Supreme Court has said that mere publication of a notification is not sufficient to declare a property as wakf since it is required to complete the statutory process, including two surveys, settlement of disputes and submission of a report to the state government and to the Wakf Board.

The court also said in absence of any express dedication, creation of a wakf can be determined from the facts and circumstances of each case, including long usage of the property for religious and public charitable purposes.

"Under the Muslim law, a wakf can be created in several ways but primarily by permanent dedication of any movable and immovable property by a person professing Islam for any purpose recognised by Muslim law as pious, religious or charitable purpose and in the absence of such dedication, it can be presumed to have come into existence by long use," a bench of Justices V Ramasubramanian and Pankaj Mithal said.

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In its judgement of May 18, the court dismissed an appeal filed by Salem Muslim Burial Ground Protection Committee against the Madras High Court rejecting their claim over a suit land. The appellant said the land was used as a burial ground and once a wakf would always remain a wakf.

In the case, the bench said, there is no iota of evidence from the very inception as to any express dedication of the suit land for any pious, religious or charitable purpose by anyone professing Islam. Therefore, on the admitted facts, the wakf by dedication of the suit land is ruled out.

The court also found that the suit land was not proved to be a wakf land by long usage either.

"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). Therefore, the alleged use of the suit land as burial ground prior to 1900 or 1867 is not sufficient to establish a wakf by user in the absence of evidence to show that it was so used. Thus, it cannot constitute a wakf by user also," the bench said.

The bench also said a declaration has to be in consonance with the provisions of the Wakf Act, 1954 or the Waqf Act, 1995 and mere issuance of notification was not sufficient for the purpose.

"A plain reading of the provisions of the two Acts would reveal... conducting of the surveys before declaring a property a wakf property is a sine qua non," the bench said.

The court also said the official Gazette is bound to carry any notification at the instance of the Wakf Board but nonetheless, the state government is not bound by such a publication of the notification in the official Gazette merely for the reason that it has been so published.

"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," the bench said.