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Wakfs – Publication of Notification issued by Wakf Board in the State Government Gazette – Effect of – Whether the State is estopped to challenge such notification – Held: The Wakf Board is a statutory authority under the 1954 Act as well as under the 1995 Act – The Official Gazette has to carry any notification at the instance of the Wakf Board – 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 – The mere reason that the notification was published in the State Government gazette is not binding on the State Government – Wakf Act, 1995 – Wakf Act, 1954.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 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 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 – Non-submission 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. |
