The Madhya Pradesh High Court has clarified that a notification declaring property as waqf, issued without compliance with the mandatory preliminary survey under Section 4 of the Waqf Act, 1995, is legally void ab initio. This ruling overturns the mechanistic application of limitation periods where the foundational validity of the waqf declaration is absent.
Background & Facts
The Dispute
The petitioner, representing the legal representatives of the deceased Shafi Ullah, claimed title to a property in Jabalpur, allegedly held under a title deed dated 1932. The property, identified as Masjid Khateebji, was included in a notification dated 25.08.1989 issued by the Madhya Pradesh Waqf Board as serial number 600 in the list of waqf properties. The petitioner was not aware of this notification until 2011, when the Waqf Board attempted to evict him from the property. He filed a suit in 2012 seeking a declaration that the property was not waqf, that his title was valid, and that the entry in the Waqf Board’s register be deleted.
Key Facts
- The petitioner’s predecessor held a title deed dated 1932 for the property
- The property was used as a mosque for decades
- The Madhya Pradesh Waqf Board issued a notification on 25.08.1989 listing the property as waqf (Entry No. 600)
- The notification itself stated: "no record of the person creating the waqf or any document of endowment could be traced or known"
- No survey list under Section 4 of the Waqf Act, 1995 was produced by the Board in support of the notification
- The petitioner first became aware of the notification in 2011, when the Board threatened eviction
- The suit was filed on 15.02.2012 before the M.P. Waqf Tribunal
Procedural History
- 25.08.1989: Notification issued by Madhya Pradesh Waqf Board listing property as waqf (Entry No. 600)
- 2011: Waqf Board attempted to evict petitioner; cause of action arose
- 15.02.2012: Suit filed before M.P. Waqf Tribunal (Case No. 22/2012)
- 15.06.2015: Tribunal dismissed the suit, holding it barred by limitation under Section 6(1) of the Waqf Act, 1995
- 24.04.2015: Petitioner filed Civil Revision No. 244 of 2015 before the High Court of Madhya Pradesh at Jabalpur
- 26.02.2026: Arguments concluded
- 17.03.2026: Judgment pronounced
The Parties' Positions
Petitioner’s Position: The notification is invalid because no preliminary survey under Section 4 was conducted. The absence of any record of dedication, donor, or date of waqf renders the notification non-est. The suit is not barred by limitation because the notification is void, not merely voidable.
Respondent’s Position: The notification dated 25.08.1989 is conclusive proof of waqf status. Even if challenged, the suit filed in 2012 is barred by the one-year limitation under Section 6(1) of the Waqf Act, 1995.
Relief Sought
The petitioner sought:
- A declaration that the property is not waqf
- Declaration of title under the 1932 deed
- Deletion of Entry No. 600 from the Waqf Board’s register
- Restoration of possession
The Legal Issue
The central question was whether a notification declaring property as waqf under Section 5 of the Waqf Act, 1995, is valid and enforceable in the absence of a prior survey and report under Section 4, and whether limitation under Section 6 applies to such a nullity.
Arguments Presented
For the Petitioner
Counsel relied on Salem Muslim Burial Ground Protection Committee v. State of T.N. (2023) 16 SCC 264, arguing that Section 4 mandates a two-stage survey process before any notification under Section 5 can be issued. The absence of a survey list, coupled with the notification’s own admission that no records of dedication exist, renders the notification a legal nullity. The suit, therefore, is not barred by limitation because a void act cannot be validated by time.
For the Respondent
Counsel contended that the notification, once published in the Official Gazette, creates a presumption of validity under Section 6 of the Waqf Act. The suit was filed 23 years after notification, far beyond the one-year limitation period. The petitioner’s failure to challenge the notification within the statutory period is fatal to the claim.
The Court's Analysis
The Court undertook a detailed examination of the statutory scheme under the Waqf Act, 1995, and the binding precedent in Salem Muslim Burial Ground Protection Committee v. State of T.N. The Court emphasized that the notification under Section 5 is not an independent act but a consequential step following a mandatory statutory process.
"A plain reading of the provisions of the above two Acts would reveal that the notification under Section 5 of both the Acts declaring the list of the wakfs shall only be published after completion of the process as laid down under Section 4 of the above Acts, which provides for two surveys, settlement of disputes arising thereto and the submission of the report to the State Government and to the Board. Therefore, conducting of the surveys before declaring a property a wakf property is a sine qua non."
The Court noted that the notification itself admitted the absence of any record of the waqf’s origin, donor, or date of creation. The Waqf Board failed to produce any survey report, survey list, or evidence of due application of mind by the Survey Commissioner. The Court held that such a notification, lacking the foundational survey, is not merely defective but void ab initio.
The Court further distinguished between a void act and a voidable act. While a voidable act may be challenged within limitation, a void act has no legal existence and cannot be validated by lapse of time. The Court observed:
"The publication of a notification in the Official Gazette has a presumption of knowledge to the general public... but such a notification published at the instance of the Wakf Board... is not binding upon the State Government... especially when no procedure as prescribed under Section 4... has been followed."
The Court rejected the argument that limitation bars inquiry into the validity of the notification when it is raised as a defence. The Tribunal was obligated to examine the foundational validity of the notification before applying limitation.
The Verdict
The petition was partly allowed. The order of the Waqf Tribunal dated 15.06.2015 was set aside. The matter was remanded to the Tribunal to conduct an inquiry into whether a valid survey under Section 4 of the Waqf Act, 1995, was conducted prior to the 1989 notification. If a valid survey exists, the suit shall be dismissed as barred by limitation. If no survey exists, the notification shall be held void, and the suit shall be decided on merits. The parties are directed to appear before the Tribunal on 02.04.2026.
What This Means For Similar Cases
Waqf Notifications Require Procedural Compliance
- Practitioners must verify whether a notification under Section 5 is supported by a survey report under Section 4 before accepting its validity
- A notification lacking survey documentation is legally null and cannot be used to extinguish private title
- In property disputes, the burden shifts to the Waqf Board to produce the survey record, not to the claimant to disprove waqf status
Limitation Does Not Protect Nullities
- A claim based on a void notification cannot be defeated by limitation under Section 6
- Courts must examine the foundational validity of a notification even when it is raised as a defence, not as a direct challenge
- The doctrine of nullum tempus occurrit regi applies: the State cannot benefit from its own procedural illegality
Documentary Evidence Trumps Presumptions
- Where a notification explicitly admits absence of records (e.g., "no donor or date known"), it undermines its own validity
- Title deeds predating the notification, if credible, must be weighed against a procedurally defective notification
- Courts must not mechanically apply statutory presumptions where the statutory preconditions are demonstrably unmet
