LAW FOR ALL : During the pendency of suit, an application was filed by the defendant Nos. 1 to 5 including the appellant herein under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter called as ‘CPC’) for rejection of plaint. The said application was allowed by the Wakf Tribunal on 8th March, 2016. On revision by the plaintiff, the order of rejection of plaint passed by the Wakf Tribunal is set aside by the High Court.= The property in question is not notified in the Gazette as a Wakf Property at any point of time till this date and hence it is not open for the respondent to file this suit on the presumption that the property in question is a Wakf property. Since the property is not a Wakf property, the Wakf Tribunal has no jurisdiction to entertain the suit. That though the notification issued containing the list of certain Wakf properties was gazetted by the Wakf Board as early as in the year 1962, the High Court is not justified in raising doubt in the year 2013 about such notification which had been remained unchallenged for more than 50 years. It is not open for the respondent to generate the litigation only to harass the appellant.- In the matter on hand, as mentioned supra, the Tribunal and the High Court, on facts have held that the property in question is not included in the list published in the Official Gazette as a wakf property. Such non- inclusion was never questioned by any person including the Wakf Board. The Board has not exercised jurisdiction under Section 27 of 1954 Act and Section 40 of 1995 Act, though 50 years have elapsed from the date of the gazette notification. Hence, in our considered opinion, the averments in the plaint do not disclose the cause of action for filing the suit. The suit is manifestly meritless and vexatious. So also the suit is barred by law for the reasons mentioned supra.

Friday, April 28, 2017

During the pendency of suit, an application was filed by the defendant Nos. 1 to 5 including the appellant herein under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter called as ‘CPC’) for rejection of plaint. The said application was allowed by the Wakf Tribunal on 8th March, 2016. On revision by the plaintiff, the order of rejection of plaint passed by the Wakf Tribunal is set aside by the High Court.= The property in question is not notified in the Gazette as a Wakf Property at any point of time till this date and hence it is not open for the respondent to file this suit on the presumption that the property in question is a Wakf property. Since the property is not a Wakf property, the Wakf Tribunal has no jurisdiction to entertain the suit. That though the notification issued containing the list of certain Wakf properties was gazetted by the Wakf Board as early as in the year 1962, the High Court is not justified in raising doubt in the year 2013 about such notification which had been remained unchallenged for more than 50 years. It is not open for the respondent to generate the litigation only to harass the appellant.- In the matter on hand, as mentioned supra, the Tribunal and the High Court, on facts have held that the property in question is not included in the list published in the Official Gazette as a wakf property. Such non- inclusion was never questioned by any person including the Wakf Board. The Board has not exercised jurisdiction under Section 27 of 1954 Act and Section 40 of 1995 Act, though 50 years have elapsed from the date of the gazette notification. Hence, in our considered opinion, the averments in the plaint do not disclose the cause of action for filing the suit. The suit is manifestly meritless and vexatious. So also the suit is barred by law for the reasons mentioned supra.

(Reportable)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5368/2017
(Arising out of S.L.P. (Civil) No.35352 of 2016)

Madanuri Sri Rama Chandra Murthy ….Appellant

Vs.

Syed Jalal …..Respondent

J U D G M E N T

Mohan M.Shantanagoudar,J.

Leave granted.

2. The order dated 07.09.2016 passed in Civil Revision Petition
No.2472/2016 by the High Court of Judicature at Hyderabad allowing the
Revision Petition and setting aside the order dated 08.03.2016 on
I.A.No.458/2015 in OS No.59/2013 passed by the Andhra Pradesh State Wakf
Tribunal at Hyderabad is called in this Appeal. The brief facts leading to
this appeal are as under:

3. The respondent herein filed suit No.59/2013 before Andhra Pradesh
State Wakf Tribunal at Hyderabad seeking cancellation of the sale deed
dated 12.1.2013 in respect of the land bearing Survey No.113 admeasuring 4
acres 72 cents situated at Pernamitta village, Prakasam District, State of
Andhra Pradesh. Certain consequential reliefs are also sought for. It is
the case of plaintiff that Survey Nos.112 and 113 to an extent of 18 acres
88 cents situated at Pernamitta village were notified in the Official
Gazette of Wakf Board dated 28.6.1962 at serial No.966 and were also
surveyed by the Survey Commissioner appointed under the provisions of the
Wakf Act. The part of Survey No.113 to an extent of 4 acres 72 cents was
purchased by the defendant through the sale deed dated 12.1.2013 executed
by Mr. Alluri Koteshwar Rao (Defendant No.6) in whose name property was
standing. Plaintiff claims to be Mutwalli of the Wakf. The sum and
substance of the plaintiff’s case is that the defendant Nos.1 to 5 have
purchased the suit property from a private person though the said property
is the Wakf property and therefore the sale deed dated 12.1.2013 does not
convey any right, title or interest in favour of the defendants 1 to 5.

4. It is the case of the appellant/defendant No.1 that the property was
and is not a Wakf property inasmuch as it was never notified as a Wakf
property; though official gazette was published as back as on 28.6.1962,
the property does not find place in the gazette notifying the same as Wakf
property; it is a private property and that he had purchased the same
through a valid sale deed.

5. During the pendency of suit, an application was filed by the
defendant Nos. 1 to 5 including the appellant herein under Order VII Rule
11 of the Code of Civil Procedure, 1908 (hereinafter called as ‘CPC’) for
rejection of plaint. The said application was allowed by the Wakf Tribunal
on 8th March, 2016. On revision by the plaintiff, the order of rejection of
plaint passed by the Wakf Tribunal is set aside by the High Court.

6. Learned counsel for the appellant taking us through the impugned
judgment of the High Court submitted that this is a fit case wherein the
plaint ought to be rejected at the threshold inasmuch as the plaint does
not disclose any cause of action and the suit is barred by law. The
property in question is not notified in the Gazette as a Wakf Property at
any point of time till this date and hence it is not open for the
respondent to file this suit on the presumption that the property in
question is a Wakf property. Since the property is not a Wakf property,
the Wakf Tribunal has no jurisdiction to entertain the suit. That though
the notification issued containing the list of certain Wakf properties was
gazetted by the Wakf Board as early as in the year 1962, the High Court is
not justified in raising doubt in the year 2013 about such notification
which had been remained unchallenged for more than 50 years. It is not
open for the respondent to generate the litigation only to harass the
appellant.
7. Per contra, advocate for the respondent submitted that though the
gazette notification did not contain the property in question as a Wakf
property, the Survey Report disclosed the property in question as a Wakf
property and therefore the defect while publishing the Gazette notification
needs to be rectified. He submitted that the High Court is justified in
passing the impugned judgment after verifying the records and therefore, it
is not a fit case for rejecting of plaint at the threshold.

8. The plaint can be rejected under Order VII Rule 11 if conditions
enumerated in the said provision are fulfilled. It is needless to observe
that the power under Order VII Rule 11, CPC can be exercised by the Court
at any stage of the suit. The relevant facts which need to be looked into
for deciding the application are the averments of the plaint only. If on
an entire and meaningful reading of the plaint, it is found that the suit
is manifestly vexatious and meritless in the sense of not disclosing any
right to sue, the court should exercise power under Order VII Rule 11, CPC.
Since the power conferred on the Court to terminate civil action at the
threshold is drastic, the conditions enumerated under Order VII Rule 11 of
CPC to the exercise of power of rejection of plaint have to be strictly
adhered to. The averments of the plaint have to be read as a whole to find
out whether the averments disclose a cause of action or whether the suit is
barred by any law. It is needless to observe that the question as to
whether the suit is barred by any law, would always depend upon the facts
and circumstances of each case. The averments in the written statement as
well as the contentions of the defendant are wholly immaterial while
considering the prayer of the defendant for rejection of the plaint. Even
when, the allegations made in the plaint are taken to be correct as a whole
on their face value, if they show that the suit is barred by any law, or do
not disclose cause of action, the application for rejection of plaint can
be entertained and the power under Order VII Rule 11 of CPC can be
exercised. If clever drafting of the plaint has created the illusion of a
cause of action, the court will nip it in the bud at the earliest so that
bogus litigation will end at the earlier stage.

9. In order to prima facie satisfy his case as pleaded in plaint that
the Suit property is a Wakf property, the plaintiff produced certain
documents including Gazette Notification dated 28.06.1962. The averments
in the plaint disclose that the property bearing Survey No. 113 situated at
Pernamitta village was notified as Wakf property under Serial No. 966 in
the Official Gazette published by Andhra Pradesh State Wakf Board on
28.06.1962. On verification of the Gazette Notification, the Wakf Tribunal
has concluded that under Serial No. 966 (Page No.742) the property attached
to Ashoorkhana situated at Kolachanakota village was shown and not the
property belonging to Pernamitta village. The name of the plaintiff was
also not shown as Mutwalli. The property in question is situated in
Pernamitta village, whereas the Gazette which is relied upon shows that the
survey no. 113 is situated at a different village which is stated to be far
away (about 20 kms.) from village Pernamitta. There is one more Ashoorkhana
situated at Pernamitta village which is not the subject matter of this
litigation. List of wakf properties pertaining to Pernamitta village does
not contain the property in question. The Tribunal, on facts, thus has
concluded that property in question does not find place in the Official
Gazette of the Wakf Board. The High Court also concurs with the Wakf
Tribunal in that regard. Thus, there are concurrent findings of fact that
property in question was not notified in Official Gazette as a Wakf
property, as alleged by the plaintiff/respondent.

10. The High Court though has agreed with the finding of fact arrived at
by the Tribunal that the property was not notified as Wakf property in the
Official Gazette, raising some doubt about the non-inclusion/inclusion of
the property in the Survey Commissioner’s Report, erroneously has proceeded
to set aside the order of the Tribunal.

11. As mentioned supra, notification containing the list of Wakf
properties relied upon by the plaintiff was published in Gazette as back
as on 28.06.1962 as per the provisions of Section 5 of Wakf Act, 1954
(hereinafter, in short, called as 1954 Act) which is subsequently replaced
by the Waqf Act, 1995 (hereinafter, in short, called as 1995 Act). Before
proceeding further, it would be beneficial to note the certain relevant
provisions contained under the 1954 Act as well as 1995 Act for the purpose
of deciding this matter.

|The WAQF ACT, 1995 |The WAKF ACT. 1954 (Old) |
|4. Preliminary survey of [auqaf]. –|4. Preliminary survey of wakfs. – |
| | |
|(1) The State Government may, by |(1) The State Government may, by |
|notification in the Official |notification in the Official Gazette,|
|Gazette, appoint for the state a |appoint for the state a [Survey |
|Survey Commissioner of [Auqaf] and |Commissioner] of Wakfs and as many |
|as many Additional or Assistant |Additional or Assistant [Survey |
|Survey Commissioners of [Auqaf] as |Commissioners] of Wakfs as may be |
|may be necessary for the purpose of |necessary for the purpose of making a|
|making a survey of [auqaf in the |survey of Wakf properties existing in|
|state]. |the State at the date of the |
|[(1A) Every State Government shall |commencement of this Act. |
|maintain a list of auqaf referred to| |
|in sub-section (1) and the survey of| |
|auqaf shall be completed within a | |
|period of one year from the date of | |
|commencement of the Wakf (Amendment)| |
|Act, 20136, in case such survey was | |
|not done before the commencement of | |
|the Wakf (Amendment) Act, 2013: | |
|Provided that where no Survey | |
|Commissioner of Waqf has been | |
|appointed a Survey Commissioner for | |
|aquaf shall be appointed within | |
|three months from the date of such | |
|commencement.] | |
| | |
|(2) All Additional and Assistant |(2) All Additional and Assistant |
|Survey Commissioners of [Auqaf] |[Survey Commissioners] of Wakfs shall|
|shall perform their functions under |perform their functions under this |
|this Act under the general |Act under the general supervision and|
|supervision and control of the |control of the [Survey Commissioner] |
|Survey Commissioner of [Auqaf]. |of Wakfs. |
| | |
|(3) The Survey Commissioner shall, |(3) The [Survey Commissioner] shall, |
|after making such inquiry as he may |after making such inquiry as he may |
|consider necessary, submit his |consider necessary, submit his |
|report, in respect of [auqaf] |report, [in respect of Wakfs existing|
|existing at the date of commencement|at the date of commencement of this |
|of this Act in the State or any part|Act in the State or any part |
|thereof, to the State Government |thereof,] to the State Government |
|containing the following |containing the following particulars,|
|particulars, namely:- |namely:- |
| | |
|(a) ………….. |(a) ………….. |
|(b) …………… |(b) …………… |
|(c) …………… |(c) …………… |
|(d) …………… |(d) …………… |
|(e) …………… and |(e) …………… and |
|(f) ……………. |(f) ……………. |
| | |
|(4)……………………. |(4)……………………. |
| | |
|(5) ……. |(5)….. |
| | |
|(6) The State Government may, by |(6) The State Government may, by |
|notification in the Official |notification in the Official Gazette,|
|Gazette, direct the Survey |direct the Survey Commissioner to |
|Commissioner to make a second or |make a second or subsequent survey of|
|subsequent survey of [waqf] |wakf properties in the State and the |
|properties in the State and the |provisions of sub-sections (2), (3), |
|provisions of sub-sections (2), (3),|(4) and (5) shall apply to such |
|(4) and (5) shall apply to such |survey as they apply to a survey |
|survey as they apply to a survey |directed under sub-section (1): |
|directed under sub-section (1): | |
| |Provided that no such second or |
|Provided that no such second or |subsequent survey shall be made until|
|subsequent survey shall be made |the expiry of a period of twenty |
|until the expiry of a period of [ten|years from the date on which the |
|years] from the date on which the |report in relation to the immediately|
|report in relation to the |previous survey was submitted under |
|immediately previous survey was |sub-section (3).] |
|submitted under sub-section (3): | |
|[Provided further that the waqf | |
|properties already notified shall | |
|not be reviewed again in subsequent | |
|survey except where the status of | |
|such property has been changed in | |
|accordance with the previous of any | |
|law.] | |
|5. Publication of list of [auqaf]. |5. Publication of list of wakfs. – |
|– | |
| |(1) On receipt of a report under |
|(1) On receipt of a report under |sub-section (3) of section 4, the |
|sub-section (3) of section 4, the |State Government shall forward a copy|
|State Government shall forward a |of the same to the Board. |
|copy of the same to the Board. | |
| |(2) The Board shall examine the |
|(2) The Board shall examine the |report forwarded to it under |
|report forwarded to it under |sub-section (1) and publish, in the |
|sub-section (1) and [forward it back|Official Gazette, a list of wakfs |
|to the Government within a period of|[[in the State, or as the case may |
|six months for publication in the |be, the part of the State, whether in|
|Official Gazette] a list of Sunni |existence at the commencement of this|
|[auqaf] or Shia [auqaf] in the |Act or coming into existence |
|State, whether in existence at the |thereafter] to which the report |
|commencement of this Act or coming |relates, and] containing such |
|into existence thereafter, to which |particulars as may be prescribed. |
|the report relates, and containing | |
|such other particulars as may be | |
|prescribed. | |
| | |
|[(3) The revenue authorities shall –| |
| | |
|(i) include the list of auqaf | |
|referred to in sub-section (2), | |
|while updating the land records: and| |
|(ii) take into consideration the | |
|list of auqaf referred to in | |
|sub-section (2), while deciding | |
|mutation in the land records.] | |
| | |
|[(4) The State Government shall | |
|maintain a record of the lists | |
|published under sub-section (2) from| |
|time to time.] | |
|6. Disputes regarding [auqaf]. – |6. Disputes regarding wakfs. – |
| | |
|(1) If any question arises whether a|(1) If any question arises [whether a|
|particular properly specified a |particular property specified as wakf|
|[waqf] property in the list of |property in a list of wakfs published|
|[auqaf] is [waqf] properly or not or|under sub-section (2) of Section 5 is|
|whether a [waqf] specified in such |wakf property or not whether a wakf |
|list is a Shia [waqf] or Sunni |specified in such list is a Shia wakf|
|[waqf], the Board or the mutawalli |or sunni wakf] the Board of the |
|of the [waqf] of [any person |mutawalli of the wakf or any person |
|aggrieved] may institute a suit in a|interested therein may institute a |
|Tribunal for the decision of the |suit in a civil court of competent |
|question and the decision of the |jurisdiction for the decision of the |
|Tribunal in respect of such matter |question and the decision of the |
|shall be final: |civil court in respect of such matter|
|Provided that no such suit shall be |shall be final: |
|entertained by the Tribunal after |Provided that no such suit shall be |
|the expiry of one year from the date|entertained by the Civil court after |
|of the publication of the list of |the expiry of one year from the date |
|[auqaf]: |of the publication of the list of |
|[Provided further that no suit shall|wakfs under sub-section (2) of |
|be instituted before the Tribunal in|Section 5: |
|respect of such properties notified |[Provided further that in the case of|
|in a second or subsequent survey |the list of wakfs relating to any |
|pursuant to the provisions contained|part of the State and published or |
|in sub-section (6) of section 4.] |purporting to have been published |
| |before the commencement of the Wakf |
| |(Amendment) Act, 1969 (38 of 1969, |
| |such suit may be entertained by the |
| |Civil Court within the period of one |
| |year from such commencement.] |
| | |
| |(2)…….. |
|(2)……. | |
| |(3) ………. |
|(3) …….. | |
| |(4) The list of wakfs published |
|(4) The list of [auqaf] shall, |under sub-section (2) of Section 5 |
|unless it is modified in pursuance |shall, unless it is modified in |
|of a decision or the Tribunal under |pursuance of a decision of the Civil |
|sub-section (1), be final and |Court under sub-section (1), be final|
|conclusive. |and conclusive. |
| | |
| |(5) On and from the commencement of |
|(5) On and from the commencement of |the Wakf (Amendment) Act, 1984 in a |
|this Act in a State, no suit or |State, no suit or other legal |
|other legal proceeding shall be |proceeding shall be instituted or |
|instituted or commenced in a court |commenced in a Civil Court in that |
|in that state in relation to any |State in relation to any question |
|question referred to in sub-section |referred in sub-section (1).] |
|(1). | |
| | |
| | |
|7. Power of Tribunal to determine |6-A. Power of Tribunal to determine|
|disputes regarding [auqaf] |disputes regarding wakfs |
| | |
|(1) If, after the commencement of |(1) If, after the commencement of the|
|this Act, [any question or dispute] |Wakf (Amendment) Act, 1984, any |
|arises, whether a particular |question arises whether a particular |
|property specified as [waqf] |property specified as wakf property |
|property in a list of [auqaf] is |in a list of wakfs published under |
|[waqf] property or not, or whether a|sub-section (2) of the Section 5 is |
|[waqf] specified in such list is a |wakf property or not, or whether a |
|Shia [waqf] or a Sunni [waqf], the |wakf specified in such list is a Shia|
|Board or the mutawalli of the |wakf or a Sunni wakf, the Board or |
|[waqf], or [or any person aggrieved |the mutawalli of the wakf, or any |
|by the publication of the list of |person interested therein, may apply |
|auqaf under section 5] therein, may |to the Tribunal having jurisdiction |
|apply to the Tribunal having |in relation to such property, for the|
|jurisdiction in relation to such |decision of the question and the |
|property, for the decision of the |decision of the Tribunal in respect |
|question and the decision of the |of such matter shall be final: |
|Tribunal thereon shall be final: |Provided that – |
|Provided that – | |
| |(a) in the case of the list of wakfs |
| |relating to any part of the State and|
|(a) in the case of the list of |published or purporting to have been |
|[auqaf] relating to any part of the |published after the commencement of |
|State and published after the |the Wakf (Amendment) Act, 1984, no |
|commencement of this Act no such |such application shall be entertained|
|application shall be entertained |after the expiry of one year from the|
|after the expiry of one year from |date of publication of the list of |
|the date of publication of the list |wakfs under sub-section (2) and |
|[auqaf]; and |Section 5; and |
| | |
| | |
| |(b) in the case of the list of wakfs |
| |relating to any part of the State and|
| |published or purporting to have been |
|(b) in the case of the list [auqaf] |published at any time within a period|
|relating to any part of the State |of one year immediately preceding the|
|and published at any time within a |commencement of the Wakf (Amendment) |
|period of one year immediately |Act, 1984, such an application may be|
|preceding the commencement of this |entertained by the Tribunal within |
|Act, such an application may be |the period of one year from such |
|entertained by Tribunal within the |commencement: |
|period of one year from such | |
|commencement: | |
| |Provided further that where any such |
| |question has been heard and finally |
| |decided by a civil court in a suit |
| |instituted before such commencement, |
|Provided further that where any such|the Tribunal shall not re-open such |
|question has been heard and finally |question. |
|decided by a civil court in a suit | |
|instituted before such commencement,| |
|the Tribunal shall not re-open such | |
|question. | |

12. A bare reading of the afore-quoted provisions (relevant provisions
for the purpose of this matter) contained in 1954 Act and 1995 Act, makes
it manifestly clear that the provisions, which are relevant for this case
are almost parimateria with each other.

13. Section 4 of 1954 Act, empowered the State Government to appoint a
State Commissioner, and as many Additional and Assistant Survey
Commissioners of Wakf as may be necessary, by a notification in the
Official Gazette for the purpose of making survey of wakf properties
existing within the State. The Survey Commissioner after making a survey
of wakf properties would submit his report to the State Government
containing various particulars as mentioned in sub-sections (3) and (4) of
Section 4 of the Act. Section 5 of 1954 Act mandated that on receipt of
such report from Survey Commissioner made under sub-section (3) of Section
4, the State Government should forward a copy of the same to the Wakf
Board. The Wakf Board would examine the report forwarded to it and publish
in Official Gazette, the list of Wakfs in the State. For resolving the
disputes regarding Wakfs, Section 6 of 1954 Act, provided jurisdictional
Civil Court as a forum and decision of Civil Court in respect of such
matters should be final. It was also clarified that no such suit should be
entertained by the Civil Court, after the expiry of one year from the date
of publication of the list of Wakfs as per sub-section (2) of Section 5.
Sub-section (4) of Section 6 stated that the list of Wakfs published under
sub-section (2) of Section 5 shall be final and conclusive unless such list
is modified on the direction of the Civil Court.

14. The provisions found in Sections 5 and 6 of Wakf Act 1995 and Act of
1954 are almost akin to each other. However the change brought in by the
Parliament under 1995 Act is that, in the case of dispute regarding Wakfs,
the aggrieved party needs to approach the Wakf Tribunal constituted under
Section 83 of the Waqf Act 1995 and consequently the jurisdiction of the
Civil Court is taken away. Except the aforesaid change, no other
substantial modification is found in those provisions. Section 7 of 1995
Act empowers the Tribunal to determine the disputes, regarding Auqaf/Wakfs,
the particulars of which are specified therein.

15. Section 6 and Section 7 of Waqf Act 1995 bars jurisdiction of the
Civil Court to try the civil suit in respect of questions specifically
enumerated under those provisions. Section 85 of Waqf Act, 1995 further
clarifies that no suit or other legal proceeding shall lie in any civil
court, revenue court and any other authority in respect of any dispute,
question or other matter relating to any wakf, wakf property or other
matter which is required by or under this Act to be determined by a
Tribunal.

16. The overall view of the aforementioned provisions contained in Wakf
Act, 1954 and Waqf Act 1995 make it evident that even under 1954 Act, as in
1995 Act, the Survey Commissioners were appointed for the purpose of making
survey of wakfs in State. The Survey Commissioner was duty bound to
conduct the survey of wakfs in the State and after making such enquiry, as
he might consider necessary, would submit his report in respect of Wakfs
existing in the State to the State Government with necessary particulars.
Copy of the said report would be forwarded by the State to the Wakf Board
which in turn would examine the report by applying its mind and thereafter
would publish the notification. Whereas under 1995 Act, the Wakf Board
after examining the report forwards it back to Government within a period
of 6 months for publication in the Official Gazette in the State. Pursuant
thereto the State will publish the Gazette notification. The revenue
authorities will consequently include the list of Auqaf properties while
updating the revenue records under sub-section (3) of Section 5 of 1995
Act.

17. Thus it is amply clear that the conducting of survey by the Survey
Commissioner and preparing a report and forwarding the same to the State or
the Wakf Board precedes the final act of notifying such list in the
official gazette by the State under 1995 Act, (it was by the Board under
1954 Act). As mentioned supra, the list would be prepared by the Survey
Commissioner after making due enquiry and after valid survey as well as
after due application of mind. The enquiry contemplated under sub-section
(3) of Section 4 is not merely an informal enquiry but a formal enquiry to
find out at the grass root level, as to whether the property is a Wakf
Property or not. Thereafter the Wakf Board will once again examine the
list sent to it with due application of it’s mind and only thereafter the
same will be sent to Government for notifying the same in the Gazette.
Since the list is prepared and published in the official Gazette by
following aforementioned procedure, there is no scope for the plaintiff to
get the matter reopened by generating some sort of doubt about Survey
Commissioner’s report. Since the surveyor’s report was required to be
considered by the State Government as well as Wakf Board (as the case may
be), prior to finalisation of the list of properties to be published in the
Official Gazette, it was not open for the High Court to conclude that the
Surveyor’s report will have to be reconsidered. On the contrary Surveyor’s
report merges with the Gazette Notification published under Section 5 of
the Wakf Act.

18. As held by the Tribunal as well as the High Court, the property in
question does not find place in the Gazette notification published under
Section 5 of the Wakf Act. In other words, the property in question is not
notified in the official Gazette as Wakf property. If anybody including
the Wakf Board or the plaintiff was aggrieved by such non-inclusion of the
property in the list notified, the aggrieved person should have raised the
dispute under Section 6 within a period of one year from the date of
publication of the Gazette notification in the matter. The plaintiff has
practically questioned the non-inclusion of the property in the list and
the validity of the list notified in the official gazette dated 28.06.1962
after the lapse of about 50 years, i.e. in the year 2013 by filing the
present suit.

19. As per Section 27 of 1954 Act (Section 40 of 1995 Act), the Board may
itself collect information regarding any property which it has reason to
believe to be wakf property and if any question arises whether a particular
property is wakf property or not the Board after making such enquiry as it
deems fit, decide the question. The decision of the Board on any question
under sub-section (1) of Section 27 of 1954 Act (or under Section 40(1) of
1995 Act) shall, unless revoked or modified by the Civil Court, be final.
The effect of Section 27 of 1954 Act or Section 40 of 1995 Act is that, if
any property had been omitted to be included in the list of auqaf by
inadvertence or otherwise, then it was/is for the Wakf Board to take
action, as per said provision. In this context, it is relevant to note the
observations by this Court in the case of T.N.Wakf Board vs. Hathija Ammal
[1] which read thus:

“In the event, any property has been omitted by inadvertence or otherwise,
then it is for the Wakf Board to take action as provided under Section 27
of the Act. If the Wakf Board has reason to believe that a particular
property is a wakf property then it can itself collect information and if
any question arises whether a particular property is a wakf property or
not, it may, after making such enquiry as it may deem fit decide the
question and such decision of the Wakf Board shall be final unless revoked
or modified by a civil court. Such action has not been taken by the Wakf
Board in this case.”

20. Sub-section (1A) of Section 4 is inserted by Act 27 of 2013 w.e.f.
1.11.2013 and the same reads thus:

“(1A) Every State Government shall maintain a list of auqaf
referred to in sub-section (1) and the survey of auqaf shall be completed
within a period of one year from the date of commencement of the Wakf
(Amendment) Act, 2013, in case such survey was not done before the
commencement of the Wakf (Amendment) Act, 2013:

Provided that where no Survey Commissioner of Waqf has been
appointed a Survey Commissioner for auqaf shall be appointed within three
months from the date of such commencement.”

21. In the matter on hand, the said provision also will not come to the
aid of the plaintiff inasmuch as the said sub-section can be employed only
if survey of auqaf was not done before the commencement of Wakf (Amendment)
Act, 2013. Admittedly in the matter on hand, the survey was conducted prior
to 1962 and based on such Surveyor’s report only, the list was prepared
and the same was submitted to State Government, which in turn, was
forwarded to Wakf Board, the Wakf Board after examining the report
published the list in the official gazette in the year 1962. Hence, sub-
section (1A) of Section 4 also will be of no avail to the plaintiff.

22. In the matter on hand, as mentioned supra, the Tribunal and the High
Court, on facts have held that the property in question is not included in
the list published in the Official Gazette as a wakf property. Such non-
inclusion was never questioned by any person including the Wakf Board. The
Board has not exercised jurisdiction under Section 27 of 1954 Act and
Section 40 of 1995 Act, though 50 years have elapsed from the date of the
gazette notification. Hence, in our considered opinion, the averments in
the plaint do not disclose the cause of action for filing the suit. The
suit is manifestly meritless and vexatious. So also the suit is barred by
law for the reasons mentioned supra.

23. In view of the above, the Order of the High Court is liable to be set
aside. Accordingly, the same stands set aside. Appeal is allowed. The
order of the Wakf Tribunal is restored. No costs.

…..…………………………….J.
(R.K.Agrawal)

…..……………………………J.
(Mohan M. Shantanagoudar)

New Delhi,
Dated: April 19, 2017

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[1]

[2] (2001) 8 SCC 528

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