State of Andhra Pradesh (Now State of Telangana) vs A. P. State Wakf Board & Ors.

Wakfs – Wakf Act, 1995 – ss.40 and 32(2)(n) – Wakf property – Whether power to investigate and determine the nature of property is an administrative function or a quasi-judicial function as an inquiry is required to be conducted before any property is declared to be Wakf property – Power of the Wakf Board to investigate and determine the nature and extent of Wakf – Held: Is not purely an administrative function – The power to determine under s.32(2)(n) is the source of power but the manner of exercising that power is contemplated u/s.40 – 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 sub-section (1) of s.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 Wakf Board has power to determine the nature of the property as wakf under s.32(2)(n) but after complying with the procedure prescribed as contained in s.40 – Such procedure categorically prescribes an inquiry to be conducted – The conduct of inquiry pre-supposes compliance of the principles of natural justice so as to give opportunity of hearing to the affected parties – On facts, the proceedings produced by the Wakf Board do not show any inquiry conducted or any notice issued to either of the affected parties – Primarily, two factors had led the Wakf Board to issue the impugned Errata notification, that is, order of the NazimAtiyat and the second survey report – Both may be considered as material available with the Wakf Board but in the absence of an inquiry conducted, it cannot be said to be in accordance with the procedure prescribed u/s.40 – Since there is no determination of the fact whether the property in question is a wakf property after conducting an inquiry in terms of s.40(1), the Errata notification cannot be deemed to be issued in terms of s.32 r/w s.40.

Wakfs – Wakf Act, 1995 – s.40(3), proviso – Reliance on proviso to s.40(3) of 1995 Act, contemplating notice to the registered trust or society in case the Wakf Board has any reason to believe that any property is Wakf and is registered under any of the Acts – Held: Is absolutely misconceived – These provisions deal with an altogether different situation – If a trust or society is already registered but the Wakf Board finds it to be Wakf, the statute contemplates notice to the authority – It does not mean that such trust or society is not required to be heard – The hearing to Trust or Society would also be as per the principles of natural justice. Wakfs – Entitlement of Government to dispute validity of Notification issued by Wakf Board before the Writ Court u/Art. 226 of the Constitution – Held: State Government, as 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 – On facts, the State Government was competent to invoke the writ jurisdiction against the action of the Wakf Board to declare the land in question as wakf property – Constitution of India – Art.

226. Wakfs – Wakf Act, 1995 – s.5 and s.32(2)(n) r/w s.40 – Errata notification published by Wakf Board in the year 2006, 17 years after the first notification in 1989 – Challenge to – Held: In the facts of the present case, the Errata notification was nothing but a fresh notification altogether – Errata is a correction of a mistake – Hence, only arithmetical and clerical mistakes could be corrected and the scope of the notification could not be enlarged by virtue of an errata notification – As against 5506 sq. yards of land notified as wakf property in the year 1989, large area of 1654 acres and 32 guntas of land could not be included under the guise of an errata notification as it is not a case of clerical or arithmetical mistake but inclusion of large area which could not be done without conducting a proper Inquiry either under s.32(2)(n) r/w s.40 or on the basis of survey report which was called by the State Government by appointing a Survey Commissioner.

Wakfs – Whether on facts, the High Court was justified in relegating the parties to statutory remedy before the Wakf Tribunal – Held: High Court examined the merits of the contention raised including the documents filed so as not to accept the contentions of the State – Though the High Court expressed the same to be prima facie view, but in fact, nothing was left to suggest that it was not a final order as far as the State is concerned with the order of the dismissal of its writ petition – Even otherwise, the questions raised were interpretation of the statutes, the Farmans issued by Sovereign from time to time and the interpretation of the document to the facts of the present case – It is not a case where any oral evidence would be necessary or is available now – 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 counsel for the parties – Thus, the High Court erred in law, in the facts and circumstances of the case, to relegate the parties to the statutory remedy. Wakf Act, 1995 – ss.5 and 105 – Publication of Errata notification u/s.5 – Powers conferred on the Wakf Board – Nonsubmission of second survey report to the State Government – Effect – Plea that once the Wakf Board had the power to publish notification after perusing the various documents, the same could not be said to be illegal only for the reason that report was not submitted to the State Government as contemplated by sub-section (1) of s.5 – Tenability of – Held: The plea that the notification is in terms of s.5 of 1995 Act is not tenable – Admitted case that the second survey report was not submitted to the State Government and such report has not even been forwarded by the Government to the Wakf Board – The Wakf Board may have a right to requisition of any document in terms of power conferred u/s.105, but if a procedure is prescribed for issuance of a notification, it could be issued only in the manner prescribed and not in any other manner – When a statute vests certain power in an authority to be exercised in a particular manner, then the said authority has to exercise the same only in the manner prescribed by the statute itself – Therefore, it cannot be said that since submission of the second survey report to the State Government was only a ministerial action, therefore, the Board had the jurisdiction to publish notification u/s.5.

Right of the State to acquire property – Land dedicated for pious and religious purpose is not immune from its vesting with the State.

Andhra Pradesh (Telangana Area) Atiyat Enquiries Act, 1952 –Jurisdiction of the Atiyat Court – Held: Is limited to disputes relating to Atiyat grants as defined in the Enquiries Act. Words and Phrases – Word “errata” – Scope and meaning of – Held: “Errata” is a term of French origin which means a thing that should be corrected – It means a mistake in printing or writing.

Allowing the appeals, the Court

HELD: 1. In the case at hand, the High Court has examined the merits of the contention raised including the documents filed so as not to accept the contentions of the State. Though the High Court has expressed the same to be prima facie view, but in fact, nothing was left to suggest that it was not a final order as far as the State is concerned with the order of the dismissal of its writ petition. Even otherwise, the questions raised before this Court are the interpretation of the statues, the Farmans issued by Sovereign from time to time and the interpretation of the document to the facts of the present case. It is not a case where any oral evidence would be necessary or is available now. In fact, that was not even the suggestion before this Court. 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 counsel for the parties. Thus, the High Court erred in law, in the facts and circumstances of the case, to relegate the parties to the statutory remedy before the Wakf Tribunal. [Para 119][1316-A-D]

2. The State Government, as 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. Therefore, 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. [Para 125][1318-FG]

3. The presence of the Government Pleader before the Nazim Atiyat was for a limited purpose as the grants were to be paid by State Government. The State was not a party either before the Nazim Atiyat or before the High Court. The State would be bound by the orders, if it was impleaded as party as it is likely to be affected on account of the orders passed. The liability of State for payment of grant was not in dispute but the question was as to whom the grants would be payable. Thus, the presence of Government Pleader was for the limited purpose of facilitating the implementation of the orders passed. A perusal of the record of the Wakf Board, shows that the Errata notification was published when the same was sent by the Chief Executive Officer of the Wakf Board to the Commissioner, Government Printing Press on 13.03.2006. This publication of notification was made under Section 5(2) of the 1995 Act under the authority of the Chief Executive Officer of the Wakf Board. Hence, the notification was not at the instance of the State Government but was an act of the Wakf Board alone. The argument raised that since the Errata notification was published in State Government Gazette, therefore, the State cannot turn around to say that they had no knowledge or that they are not bound by the notification so published is not tenable. The purpose, object and scope of the publications in the Official Gazette is not what is sought to be contended. The Court is to presume the genuineness of any documents published in any Official Gazette as contemplated by Section 81 and Section 114 (e) of the Evidence Act, 1872. The publication in the Official Gazette is not only for the affairs of the State but has multiple uses. [Para 129, 130, 131][1320-B-F]

4. The Wakf Board is a statutory authority under the 1954 Act as well as under the 1995 Act. Thus, the Official Gazette had to carry any notification at the instance of the Wakf Board. Therefore, the 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 Official Gazette. 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. [Para 132][1321-G-H]

5. The Wakf Board has power to determine the nature of the property as wakf under Section 32(2)(n) but after complying with the procedure prescribed as contained in Section 40. Such procedure categorically prescribes an inquiry to be conducted. The conduct of inquiry pre-supposes compliance of the principles of natural justice so as to give opportunity of hearing to the affected parties. The proceedings produced by the Wakf Board do not show any inquiry conducted or any notice issued to either of the affected parties. Primarily, two factors had led the Wakf Board to issue the Errata notification, that is, order of the Nazim Atiyat and the second survey report. Both may be considered as material available with the Wakf Board but in the absence of an inquiry conducted, it cannot be said to be in accordance with the procedure prescribed under Section 40 of the 1995 Act. [Para 146][1329-F-H]

6. 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. Such determination alone could have conferred right on the affected parties to avail the remedy of appeal under Section 40 of the 1995 Act. [Para 147][1330-A-B]

7. The reliance on proviso to Section 40(3) of 1995 Act, contemplating notice to the registered trust or society in case the Board has any reason to believe that any property is Wakf and is registered under any of the Acts is absolutely misconceived. These provisions deal with an altogether different situation. A trust or society is already registered but the if Board finds it to be Wakf, the statute contemplates notice to the authority. It does not mean that such trust or society is not required to be heard. The hearing to Trust or Society would also be as per the principles of natural justice. [Para 148][1330-C-D]

8.1. The question to be examined was whether the Board could issue the Errata notification after a lapse of 17 years from the date of first notification, i.e., 9.2.1989. The exercise leading to the notification started with a letter from Syed Safiullah Hussaini, the Mutawalli on 30.1.2005. He is the mutawalli mentioned in the first notification published in the year 1989. Since the notification was issued with him as Mutawalli, then his inaction for 17 long years speaks volumes of his bona-fide in initiating the process to include the large area of land as wakf. [Para 152][1332-C-D]

8.2. In the facts of the present case, the Errata notification is nothing but a fresh notification altogether. Errata is a correction of a mistake. Hence, only arithmetical and clerical mistakes could be corrected and the scope of the notification could not be enlarged by virtue of an errata notification. As against 5506 sq. yards of land notified as wakf property in the year 1989, large area of 1654 acres and 32 guntas of land could not be included under the guise of an errata notification as it is not a case of clerical or arithmetical mistake but inclusion of large area which could not be done without conducting a proper Inquiry either under Section 32(2) (n) read with Section 40 or on the basis of survey report which was called by the State Government by appointing a Survey Commissioner. [Para 154][1333-G-H; 1334A]

9. The Enquiries Act is applicable in respect of Atiyat grants alone. Atiyat grants after the commencement of Jagir Abolition Regulation mean only the commutation sum payable under the Commutation Regulation or the compensation payable under the Inams Abolition Act or cash grants etc. The Jurisdiction of the Atiyat Court would be limited to the disputes relating to Atiyat grants as defined in the Enquiries Act. [Paras 162 and 165][1336D-E; 1338-B]

CIT v. Anjum M.H. Ghaswala (2002) 1 SCC 633

: [2001] 4 Suppl. SCR 303 – followed.

Director of Settlements, A.P. & Ors. v. M.R. Apparao & Anr. (2002) 4 SCC 638 : [2002] 2 SCR 661 and D B Babu Verghese v. Bar Council of Kerala (1999) 3 SCC

422 : [1999] 1 SCR 1121 – relied on.

Rashid Wali Beg v. Farid Pindari & Ors. (2021) SCC Online SC 1003; Board of Wakf, West Bengal & Anr. v. Anis Fatma Begum & Anr. (2010) 14 SCC 588; Union of India v. T.R. Varma, AIR 1957 SC 882; Union of India & Ors. v. Ghaus Mohammad AIR 1961 SC 744 : [1962] SCR 744 and Balkrishna Ram v. Union of India (2020) 2 SCC 442 : [2020] 2 SCR 581 – distinguished. Sikander Jehan Begum v. A.P. State Govt. AIR 1962 SC 996 : [1962] Suppl. SCR 226; Raja Ram Chandra Reddy & Anr. v. Rani Shankaramma & Ors. AIR 1956 SC 319; M.P. Wakf Board v. Subhan Shah (Dead) By Lrs. and Others (2006) 10 SCC 696 : [2006] 8 Suppl. SCR 85; Mohd. Habbibuddin Khan v. Jagir

Administrator, Government of Andhra Pradesh and Others (1974) 1 SCC 82; K.S.B. Ali v. State of A.P. and Others (2018) 11 SCC 277 : [2017] 12 SCR 698; Committee of Management and another v. Vice

Chancellor (2009) 2 SCC 630 : [2008] 17 SCR 774; Addl. Secy. to the Govt. of India v. Alka Subhash Gadia (Smt) 1992 Supp (1) SCC 496 : [1990] 3 Suppl. SCR 583; K.K. Kochunni v. State of Madras AIR 1959 SC 725 : 1959 Suppl. SCR 316; Whirlpool Corporation v. Registrar of Trademarks (1998) 8 SCC 1 : [1998]

2 Suppl. SCR 359; Kranti Associates (P) Ltd. v. Masood Ahmed Khan (2010) 9 SCC 496 : [2010] 10 SCR 1070; Indian National Congress (1) v. Institute of Social Welfare (2002) 5 SCC 685 : [2002] 3 SCR 1040; Harbans Lal Sahnia v. Indian Oil Corp. (2003) 2 SCC 107; Radha Krishan Industries v. State of Himachal Pradesh (2021) 6 SCALE 78; Rajasthan Wakf Board v. Devki Nandan Pathak & Ors. (2017) 14 SCC 561 : [2017] SCR 878; Haryana Wakf Board v. Mahesh

Kumar (2014) 16 SCC 45 : [2013] 12 SCR 596; Punjab Wakf Board v. Sham Singh Harike (2019) 4 SCC 698; Telangana State Wakf Board & Anr. v. Mohamed

Muzafar (2021) 9 SCC 179; Nawab Zain Yar Jung (since deceased) & Ors. v. Director of Endowments & Anr. AIR 1963 SC 985 : [1963] SCR 469; Sayyed Ali & Ors. v. A.P. Wakf Board, Hyderabad & Ors. (1998) 2 SCC 642 : [1998] 1 SCR 398; T.N. Wakf Board v. Hathija Ammal (Dead) by LRs & Ors. (2001) 8 SCC

528 : [2001] 2 Suppl. SCR 428; Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13 SCC 174 : [2017] 5 SCR 294; Chief Conservator of Forests, Govt. of A.P. v. Collector & Ors. (2003) 3 SCC 472 : [2003]

2 SCR 180; K.B. Ramachandra Raje Urs (Dead) by Legal Representatives v. State of Karnataka & Ors. (2016) 3 SCC 422 : [2015] 11 SCR 974; Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors. (1998) 8 SCC 1 : [1998] 2 Suppl. SCR 359; Commissioner of Income Tax & Ors. v. Chhabil Dass Agarwal (2014) 1 SCC 603; Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and Others (1974) 2 SCC

706 : [1975] 2 SCR 71; Radha Krishan Industries v. State of H.P. (2021) 6 SCC 771; Rajasthan State Electricity Board, Jaipur v. Mohan Lal & Ors AIR 1967 SC 1857 : [1967] SCR 377; State of U.P. v. Neeraj Awasthi & Ors. (2006) 1 SCC 667 : [2005] 5 Suppl. SCR 906; Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay (1989) 3 SCC 293 : [1989] 2 SCR 751; Shrilekha Vidyarthi (Kumari) v. State of U.P. (1991) 1 SCC 212 : [1990] 1 Suppl. SCR 625; M.J. Sivani and others v. State of Karnataka (1995)

6 SCC 289 : [1995] 3 SCR 329; Oil and Natural Gas Commission v. Collector of Central Excise (1995) Supp

(4) SCC 541; Electronics Corporation of India Limited v. Union of India (2011) 3 SCC 404 : [2011] 2 SCR 971; Province of Bombay v. Khushaldas S. Advani & Ors. AIR 1950 SC 222 : [1950] SCR 621; State of Himachal Pradesh v. Raja Mahendra Pal & Ors. (1999)

4 SCC 43 : [1999] 2 SCR 323; Nawab Zain Yar Jung (since deceased) & Ors. v. Director of Endowments & Anr. AIR 1963 SC 985 : [1963] SCR 469; Raja

Rameshwar Rao and Another v. Raja Govind Rao AIR 1961 SC 1442 : [1962] SCR 618; Sarwanlal & Anr. v. State of Hyderabad (Now Andhra Pradesh) & Ors. AIR 1960 SC 862 : [1960] SCR 311 and Khajamian Wakf Estates v. State of Madras (1970) 3 SCC 894 : [1971]

2 SCR 790 – referred to.

Raj Kishan Pershad and Ors. v. Joint Collector-I and Ors. (2018) 6 ALT 79 (DB); Ahmad-Un-Nissa Begum and Another v. The State through the Chief Minister and Others AIR 1952 Hyd 163; K.S.B. Ali v. State of A.P. and Others (2007) SCC Online AP 765; R.

Doraswamy Reddy v. The Board of Wakf A.P. Hyderabad rep. by its Secretary 1978 SCC OnLine AP 117; A.P.A. Rasheed v. N.N. Khalid Haji & Anr. 2011 SCC OnLine Ker 4185; Parvati Devi v. State of U.P. (2007) 6 ALL LJ 50; Vidya Varuthi Thirtha v. Balusami Ayyar & Ors. AIR 1922 PC 123; Sarwarlal and Others v. State of Hyderabad AIR 1954 Hyd 227; M/s Trinity

Infraventures Limited v. The State of Telangana, represented by its Principal Secretary 2018 SCC Online Hyd 360; Universal Cans & Containers Ltd. v. Union of India 1991 SCC Online Del 784; Ezhome Sunni Valiya Juma Masjid v. Kerala State Wakf Board 2019

(3) KLT 1064 and Amjad Ali Mirza & Ors. v. Board of Wakfs & Ors. [Decision dated 20.2.2019 of Calcutta High Court in C.O. No. 749 of 2018] – referred to.

Attorney General v. Hughes (1899) 48 Weekly

Reporter 150 – referred to.