Waqf Act | Supreme Court To Consider If Preliminary Survey Under Section 4 Is Necessary Before Notifying Properties As Waqfs

The Supreme Court recently decided to examine the issue whether conducting a preliminary survey of waqf properties as per Section 4 of the Waqf Act, 1995 is necessary before issuing a gazette notification under Section 5 of the said Act declaring a property as waqf.

A bench comprising Justice Aravind Kumar and Justice NV Anjaria is considering this matter. The issue arose in a special leave petition pertaining to certain Waqf properties of the Karnataka Waqf State Board, in which it is alleged that no preliminary survey was conducted as contemplated under Section 4 of the 1995 Act. 

The Waqf Tribunal did not go into the issue, though the plaintiff had taken a specific plea that no preliminary survey was conducted before the notification of the property as waqf. The Karnataka High Court set aside the Tribunal's judgment, observing that notification under Section 5 has to be issued in compliance with Section 4 of Act.

"Strangely, no evidence was led by defendants in this regard. Therefore, finding of Tribunal that issuance of Gazette was conclusive proof about existence of Waqf would also be contrary to law," the High Court observed. The Special Leave Petition is filed against this judgment.

The present bench also took note of the precedent in  Salem Muslim Burial Ground Protection Committee v. State of Tamil Nadu and Ors(2023), in which it was held that conducting the survey under Section 4 of the Wakf Act,1954 before declaring a property as wakf property is a sine qua non. It was observed in that case that, in the absence of material or evidence to show that, before issuing the notification, the survey was conducted, it would not constitute a valid waqf in respect of the suit land.

The Supreme Court will also consider whether, in the absence of Section 4 compliance,  proviso to Section 6 of the Act would be applicable or not. Proviso to Section 6 says no suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of auqaf. List of auqaf is maintained pursuant to Section 4 survey.

The matter will be heard on December 3. Till then, the parties have been asked to address these issues and file additional material indicating whether there was compliance with Section 4 or not. This must be filed within a week.

Case Details: SYED GOUSE ALIAS NAWAB PASHA KAZI v. KARNATAKA STATE BOARD OF WAKFS & ANR.|Petition for Special Leave to Appeal (C) No.14417/2025

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