Srinagar, Apr 6 : The Jammu and Kashmir and Ladakh High Court has held that the definition of wakaf under the Jammu and Kashmir Wakaf Act, 1978 includes “wakaf by user”, observing that religious properties such as shrines do not require formal dedication to be treated as wakaf.
The court said that properties like masjid, dargah, khankah, maqbara, rauza and ziarat qualify as wakaf if they have been used for religious or charitable purposes recognised by Muslim law, even in the absence of a formal deed of dedication.
A bench of Justice Sanjay Dhar made the observation while dismissing two writ petitions related to a long-standing dispute over the management and ownership of two shrines in Kishtwar district — Ziarat Farid-ud-Din Sahib and Ziarat Assrar-ud-Din Sahib.
The petitioners, claiming to be Sajjada Nasheens of the shrines, had argued that the properties were their personal assets inherited from their forefathers and could not be treated as wakaf as there was no formal dedication by the original owner, Raja Kirat Singh.
They contended that since the alleged dedication was not made by a person professing Islam, no valid wakaf could have been created under the law.
The respondents, including the Wakaf Board, opposed the plea and argued that the properties had been used as religious shrines for centuries and therefore qualified as wakaf by user.
Referring to Section 3(d) of the 1978 Act, the court noted that the definition of wakaf explicitly includes “wakaf by user”, covering properties such as mosques, graveyards, dargahs, and similar institutions.
“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 bench observed.
The court also cited an earlier division bench judgment to reiterate that continuous use of a property for religious or charitable purposes is sufficient to establish its wakaf character.
It noted that even documents relied upon by the petitioners described the property as a “rauza”, which falls within the statutory definition of wakaf by user.
The court rejected the petitioners’ claims and held that the properties in question qualify as wakaf. It dismissed the petitions, while allowing the petitioners to occupy residential structures on the land as lessees in accordance with law.(KNS).
