Private Trust Managing Shrine Without Legal Authority Has No Right To Oppose Wakf Takeover: J&K&L High Court

The Court was hearing petitions challenging the Wakaf authorities' decision to take charge of the Ziarat of Sain Baba Miran Baksh Sahib and a later notification declaring the property as Wakaf property under the Jammu and Kashmir Wakaf Act.

A Bench of Justice Sanjay Parihar observed: “The petitioner-trust, having entered into the management of the shrine without any lawful authority or legally recognizable claim, cannot be permitted to assail the action of the respondents in taking over the management in accordance with the statutory mandate.”

The dispute concerned the management of the Ziarat of Sain Baba Miran Baksh Sahib, a shrine in Poonch visited by devotees irrespective of religion, caste, creed or colour. The petitioner-Trust claimed that after the death of Darvesh Ghulam Qadir, who was stated to be the disciple and spiritual successor of Sain Baba Miran Baksh, the Trust came into existence to manage the shrine and its allied properties.

The Trust relied on a proclamation issued by the then Chairman of the Tehsil Wakaf Committee, stating that the Trust was a private body and that the Auqaf authorities had no right over it or its properties.

The Wakaf authorities, however, maintained that the shrine was a Wakaf by user, that it had been visited by devotees for several decades, and that the Trust had no legal sanctity to administer its affairs. They further contended that the shrine and properties attached to it were required to be managed under the statutory framework of the Jammu and Kashmir Wakaf Act, 2001.

The High Court examined the definition of “Wakaf” under Section 3(l) of the Jammu and Kashmir Wakaf Act, 2001, and noted that it includes Wakaf by user such as Masjid, Idgah, Durgah, Khankah, Maqbara, Graveyard, Rouza, Mausoleum, Takia and other religious institutions.

The Court observed: “A plain reading of the aforesaid provisions makes it evident that the Act contemplates the creation or recognition of a Wakaf in three distinct modes, namely: (i) by permanent dedication of property for a religious, pious or charitable purpose recognised under Muslim law; (ii) as a Wakaf by user; and (iii) as a Wakaf-ul-Aulad.”

The Court noted that the revenue records described the land as “Takiya Sain Baba Miran Baksh Sahib”, which prima facie reflected its long-standing religious character.

The Bench held: “The Shrine had, however, become a place of religious reverence where devotees congregated in large numbers over a considerable period of time. In view of the definition of "Wakaf" contained in Section 3 of the Jammu and Kashmir Wakaf Act, 2001, such long, uninterrupted and recognized public user is sufficient to confer upon the Ziarat the character of a Wakaf by user.”

The Court rejected the Trust's reliance on Section 23 of the Act, holding that the provision applies only where the managing body is regulated by a deed creating the Wakaf. In the present case, the Trust itself came into existence after the death of Darvesh Ghulam Qadir.

The Court stated: “In the present case, the very foundation of the petitioner's claim is the Trust constituted after the demise of Darvesh Ghulam Qadir. Admittedly, the said Trust was neither created nor settled by Darvesh Ghulam Qadir during his lifetime. The petitioner himself pleads that the Trust came into existence in pursuance of his alleged wishes.”

The Court further noted that neither Sain Baba Miran Baksh nor Darvesh Ghulam Qadir executed any deed dedicating the shrine as Wakaf-ul-Aulad or constituting the petitioner-Trust as the body entrusted with its administration.

The Trust had relied heavily on the proclamation issued by the then Chairman of the Tehsil Wakaf Committee. The Court held that the Chairman had no adjudicatory power to determine whether a property was Wakaf property, since such power was vested in the Tehsil Wakaf Committee under Section 38 of the Act.

The Court observed: “Section 34 of the Act merely confers upon the Chairman powers relating to investigation into the nature and extent of Wakaf, inspection, supervision, maintenance and allied administrative functions. The provision does not confer any adjudicatory power upon the Chairman to determine the legal character of a property as being, or not being, a Wakaf property.”

The Court also found that the proclamation merely recorded that the Trust was a private charitable body and did not declare that the Ziarat or its attached properties were not Wakaf properties.

The Bench held: “The proclamation is, therefore, confined to the status of the Trust and does not determine the legal character of the Shrine. The petitioner, consequently, cannot derive any substantive benefit from the said document.”

It also noted that the Chairman who issued the proclamation was himself a member of the Trust, creating an apparent conflict of interest.

The Court rejected the argument that a declaration under Section 6 was a condition precedent before treating the shrine as Wakaf property. Relying on Intizamiya Committee Dargah v. Union Territory of Jammu & Kashmir and Others (2025), the Court held that no such declaration is necessary where a property falls within Wakaf by user.

The Court stated: “Although Section 6 envisages examination of the Special Officer's report and consultation with the Tehsil Wakaf Committee before issuance of a proclamation, the said statutory requirement has no application in cases where the property has acquired the character of a Wakaf by user.”

It added that the issue was no longer res integra in view of the Division Bench ruling.

The Court held that even if there had been delay by the respondents in assuming control, such delay could not confer any legal right on the Trust to continue managing the shrine.

The Bench observed: “Even assuming that there was some delay on the part of the respondents in assuming management of the Wakaf property, such delay cannot enure to the benefit of the petitioner nor confer upon it any legal right to continue in management.”

The Court held that once the property was a Wakaf property, its administration was governed by the Wakaf Act, 2001, which applies to all Wakaf irrespective of whether they were created before or after the Act commenced.

The High Court dismissed both writ petitions and vacated interim directions. It left the respondents free to proceed with the administration and management of the Ziarat and its properties strictly in accordance with the Jammu and Kashmir Wakaf Act, 2001 and the rules framed under it.

Case Title: Sain Miran Baba Darvesh Ghulam Qadir Trust v. State of J&K and Others

Citation: 2026 LiveLaw (JKL) 326

Appearances

For the Petitioner: Senior Advocate Abhinav Sharma, Advocates Abhirash Sharma and Abhishek Wazir

For the Respondents: Senior Advocate P.N. Raina, Advocates Ayjaz Lone, J.A. Hamal, Chetna Manhas

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