Case: Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal

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 its 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 Commissioners report. Since the surveyors 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 Surveyors report will have to be reconsidered. On the contrary Surveyors 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 v. Hathija Ammal, 2002(2) R.C.R.(Civil) 383 : (2001) 8 SCC 528 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 Surveyors 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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.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 its 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 Commissioners report. Since the surveyors 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 Surveyors report will have to be reconsidered. On the contrary Surveyors 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.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 Surveyors 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.