Wakaf Includes Wakaf By User, Religious Properties Like Rauza Or Ziarat Do Not Require Proof Of Dedication: J&K&L High Court

The Court was hearing two writ petitions arising out of a long-standing dispute regarding the management and entitlement to properties pertaining to two shrines in Kishtwar – Ziarat Farid-ud-Din Sahib and Ziarat Assrar-ud-Din Sahib. The petitioners claimed that the properties were their personal properties and not Wakaf, arguing that there was no formal dedication by the original owner, Raja Kirat Singh.

The bench of Justice Sanjay Dhar observed,

“The properties like Masjid, Dargah etc. by virtue of their user as such are also Wakafs and no formal declaration to declare such properties as 'Wakaf' is required under the Act of 1978.”

The petitioners claimed to be Sajjada Nasheens of two shrines and asserted that the properties attached thereto were their personal properties, having devolved from their forefathers. They contended that since Raja Kirat Singh (the original owner) was not a Muslim at the time of the alleged dedication, no valid Wakaf could have been created.

The respondents, including the Wakaf Board, contended that the two ziarats were Wakaf properties by user, as they had been used as religious shrines for centuries.

Court's Observation:

The Court examined the definition of Wakaf under Section 3(d) of the Jammu & Kashmir Wakaf Act, 1978, which includes “Wakaf by user such as Masjid, Idgah, Dargah, Khankah, Maqbara, Grave, Rauza, Mausoleum, Takia, Sarai, Yatim Khana, Madrasa and Shafakhana.” The Court noted that under this definition, a property does not require a formal deed of dedication to qualify as Wakaf; its continuous use for religious or charitable purposes recognized by Muslim law is sufficient.

Referring to the Division Bench judgment of the Court in Intizamiya Committee Dargah (I) & Anr v. UT of J&K & ors (LPA No. 187/2023, decided on 05.06.2025), the Court reiterated that “Wakaf can be created by permanent dedication by a person professing Islam with respect to his property for any religious, pious or charitable purposes recognized by Muslim law.

The properties like Masjid, Dargah etc. by virtue of their user as such are also Wakafs and no formal declaration to declare such properties as 'Wakaf' is required.”, the court underscored.

Applying this principle, the Court noted that the document (Annexure-A) relied upon by the petitioners themselves referred to the property as “Rauza”, which is expressly included in the definition of Wakaf by user under Section 3(d)(i) of the Act of 1978. The Court held that even as per the petitioners' own document, the property qualifies as a Wakaf by user, and therefore no formal dedication by Raja Kirat Singh was required.

The Court thus rejected the petitioners' contention that the absence of a formal dedication by a person professing Islam rendered the properties non-Wakaf. Since the properties have been used as Ziarats (religious shrines) for centuries, they fall within the category of Wakaf by user.

Accordingly, the Court dismissed the writ petitions, holding that the petitioners had not succeeded in showing that the two shrines and attached properties were their personal property. The Court affirmed that the properties qualify as Wakaf property. The challenge to the vires of the repealed Wakaf Acts was rendered infructuous.

The Court permitted the petitioners to occupy the residential houses they had constructed upon the land as lessees of Wakaf property, in accordance with the directions of the appellate authority.

Case Title: Syed Lutfullah Shah & Anr. V/s A.W. Kirpak Supdt. Engineer & Ors.

Citation: 2026 LiveLaw (JKL)

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