Wakf Board Has Power To Declare Property As Wakf Only After Conducting Inquiry U/s. 40 Of Wakf Act - SC
The Court while quashing the Errata notification observed, "Since there is no determination of the fact whether the property in question is a wakf property after conducting an inquiry in terms of Section 40(1) of the 1995 Act, the Errata notification cannot be deemed to be issued in terms of Section 32 read with Section 40 of the 1995 Act."
A two-judge Bench of Justice Hemant Gupta and Justice V Ramasubramanian while adjudicating upon the Errata notification which had been the subject matter of challenge for 16 years has held that an inquiry is required to be conducted under Section 40 of Wakf Act if the Wakf Board on the basis of information collected finds that the property in question is a wakf property.
The Court in this context, observed –
"An inquiry is required to be conducted if a Board on the basis of information collected finds that the property in question is a wakf property. An order passed thereon is subject to appeal before the Wakf Tribunal, after an inquiry required is conducted in terms of subsection (1) of Section 40."
Senior Counsel Mr. V. Giri appeared for the Appellant-State, Senior Counsel Mr. C.S Vaidyanathan appeared for the Corporation, Senior Advocate Mr. Ranjit Kumar appeared for M/s Lanco Hills Technology Park Pvt. Ltd, Senior Counsel Mr. Huzefa A. Ahmadi appeared for Wakf Board before the Apex Court.
In this case, the Andhra Pradesh High Court had dismissed the Writ Petitions of the State of Andhra Pradesh (now Telangana) challenging the Errata notification dated 13.3.2006 published in the Official Gazette on behalf of Andhra Pradesh Wakf Board. Various other Writ Petitions were also filed.
The notification issued had declared 1654 acres and 32 guntas as Wakf property.
The key issues which were dealt with by the Bench were –
i) Whether the High Court was justified in relegating the parties to the remedy before the Wakf Tribunal.
ii) Whether the Government was entitled to dispute the validity of errata notification before the Writ Court under Article 226 of the Constitution.
iii) Whether the State is estopped to challenge the notification inter-alia on the ground that Government Pleader was present before the Nazim Atiyat and before the High Court in proceedings against the order passed by Nazim Atiyat and that the notification was published in State Government Gazette.
iv) Whether the notification published at the instance of Wakf Board is in the exercise of power conferred under Section 32 read with Section 40 of the 1995 Act.
v) Whether the second survey report and/or the order of the Atiyat Court could be said to be sufficient material with the Wakf Board to publish the impugned Errata notification in exercise of powers vested in Section 5 of the 1995 Act.
- First Issue
The Court held that the High Court erred in law, in the facts and circumstances of the case, to relegate the parties to the statutory remedy.
In this context, the Bench noted –
"Since the question was in respect of interpretation of the statutes and the documents primarily issued by the Sovereign, the matter needs to be examined on merits as detailed arguments have been addressed by learned counsel for the parties."
- Second Issue
The Court added that the Wakf Board is a statutory authority established under the Wakf Act and is 'State' within the meaning of Article 12 of the Constitution.
The Bench after relying on several precedents held that that State Government is a juristic entity, has a right to protect its property through the Writ Court, just as any individual could have invoked the jurisdiction of the High Court. Hence, the State Government is competent to invoke the writ jurisdiction against the action of the Wakf Board to declare the land measuring 1654 acres and 32 guntas as wakf property.
- Third Issue
Concerning the third issue, the Bench noted that Wakf Board is a statutory authority under the 1954 Act as well as the 1995 Act. Thus, the Official Gazette had to carry any notification at the instance of the Wakf Board.
Further, the Court held that State Government is not bound by the publication of the notification in the Official Gazette at the instance of the Wakf Board only for the reason that it has been published in the Gazette.
The Court further opined –
"The publication of a notice in an Official Gazette has a presumption of knowledge to the general public as an advertisement published in a newspaper. Therefore, mere reason that the notification was published in the State Government gazette is not binding on the State Government."
- Fourth Issue
Regarding this, the Court noted various precedents and held that the power of the Board to investigate and determine the nature and extent of Wakf is not purely an administrative function. Such power had to be read along with Section 40 of the Wakf Act.
Section 40 reads as - A Wakf Board to collect information regarding any property which it has reason to believe to be wakf property and to decide the question about the nature of the property after making such inquiry as it may deem fit.
Further, the Bench observed that the power to determine under Section 32(2)(n) is the source of power but the manner of exercising that power is contemplated under Section 40 of the 1995 Act.
The Court held that an inquiry is required to be conducted if a Board on the basis of information collected finds that the property in question is a Wakf property.
"An order passed thereon is subject to appeal before the Wakf Tribunal, after an inquiry required is conducted in terms of subsection (1) of Section 40. Therefore, there cannot be any unilateral decision without recording any reason that how and why the property is included as a wakf property. The finding of the Wakf Board is final, subject to the right of appeal under sub-section (2). Thus, any decision of the Board is required to be as a reasoned order which could be tested in appeal before the Wakf Tribunal," the Court added.
- Fifth Issue
Concerning the fifth issue, the Court held that the order of the Nazim Atiyat is operative only qua the commutation amount payable to the Muslim Wakf Board, represented by the Wakf Board.
"Therefore, by virtue of the Abolition and the Commutation Regulation, the claim of the Wakf Board is restricted only to 90% of the amount of the gross basic sum referred to in Section 4 of the Commutation Regulation," the Bench held.
Hence, the Court held that after the Atiyat grants stood abolished in terms of Abolition Regulation, the Atiyat Courts would have jurisdiction to decide issues relating to succession of the commutation amount payable to the heirs.
Further, the Bench also held that the land dedicated for pious and religious purposes is not immune from its vesting with the State, by relying upon the case of Khajamian Wakf Estates v. State of Madras.
In the light of these observations, the Court passed the following directions –
- Allowed the appeals, Impugned orders of the High Court were set aside;
- Errata Notification dated 13.3.2006 was quashed. The land admeasuring 1654 Acres and 32 guntas shall vest with the state and/or Corporation free from any encumbrance; and
- In terms of Section 10(2)(i) of the Commutation Regulation, 90% of the gross basic sum referred to in Section 4 of the Commutation Regulation is payable to the Dargah. The arrears shall be calculated and paid to the Dargah within 6 months.