Karnataka High Court
The Karnataka State Board Of Auqaf vs The State Of Karnataka And Ors on 4 September, 2023
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WP No. 200410 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO.200410 OF 2019 (LA-RES)
BETWEEN:
THE KARNATAKA STATE BOARD OF AUQAF
BY ITS CHIEF EXECUTIVE OFFICER
No.6, CUNNINGHAM ROAD
BENGALURU-560 052
...PETITIONER
(BY SMT.S.R.ANURADHA, SENIOR COUNSEL FOR
SRI.P.S.MALIPATIL, ADVOCATE)
AND:
Digitally
signed by
VARSHA N 1. THE STATE OF KARNATAKA
RASALKAR
Location: BY ITS SECRETARY,
High Court REVENUE DEPARTMENT ACQUISITION
Of Karnataka
M.S.BUILDING,
BENGALURU-560 001
2. THE SPECIAL LAND ACQUISITION OFFICER
NATIONAL HIGHWAYS,
MINI VIDHANA SOUDHA
DHARWAD-01
3. THE ASSISTANT COMMISSIONER
AND COMPETENT AUTHORITY
FOR ACQUISITION,
NATIONAL HIGHWAYS
STATE HIGHWAYS, No.13,
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WP No. 200410 of 2019
VIJAYAPURA-586 101
4. NATIONAL HIGHWAYS AUTHORITY OF INDIA
PIU, SOLAPUR, REP. BY PROJECT DIRECTOR
AND DEPUTY GENERAL MANAGER (TECHNICAL)
SRI SANJAY S. KADAM
PROJECT IMPLEMENTATION UNIT
PLOT No.E-2, JAI JALRAM NAGAR
BEHIND SHIVDARE COLLEGE
JULLE SOLAPUR,
SOLAPUR-413 004
...RESPONDENTS
(BY SRI. SHIVAKUMAR R. TENGLI, AGA FOR R1 AND R2;
SRI.R.V.NAIK & SRI.BASAVARAJ M. ANGADI, ADVOCATES FOR R3;
SRI.BIDAN CHANDRAN, ADVOCATE FOR
SRI.SANTOSH KUMAR MARADI, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES OF 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
ACQUISITION PROCEEDINGS IN RESPECT OF Sy.No.134 TO THE
EXTENT OF 2 ACRES 7 GUNTAS OUT OF 4 ACRES OF MAHALBAGAYAT
VIJAYAPURA IN PURSUANCE OF THE AWARD BEARING
No.LAQ.II.SR.52(III)/80 DATED 18.05.1983 VIDE ANNEXURE-C AND
DECLARE THAT THE ACQUISITION UNDER SECTION 24 OF THE NEW
ACT ARE LAPSED; ISSUE A WRIT OF MANDAMUS DIRECTING THE
RESPONDENTS NOT TO DEMOLISH THE EXISTING MOSQUE IN
Sy.No.134 OF MAHALBAGAYAT, VIJAYAPURA AS THE PROPOSED
ACQUISITION IS AGAINST THE PLACE OF WORSHIP
(SPL.PROVISION) ACT, 1991.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 21.08.2023, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY THE COURT MADE THE FOLLOWING:
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WP No. 200410 of 2019
ORDER
In this writ petition, petitioner-Board is assailing the acquisition proceedings in respect of Sy.No.134 of Mahalbagayat, Vijayapura to the extent of 2 acres 7 guntas out of 4 acres pursuant to the award dated 18.05.1983 (Annexure-C) and also sought for declaration that the acquisition is bad in law, interalia, seeking direction to the respondents not to demolish the existing mosque situate in Sy.No.134 of Mahalbagayat, Vijayapura by the respondent authorities.
2. The relevant facts for adjudication of this writ petition are that the petitioner is a State Board of Wakf established under section 13 of the Wakf Act, 1995 (for short, hereinafter referred to as 'the Act'). The petitioner- Board is having control over all wakf properties in the State of Karnataka. It is the case of the petitioner-Board that Shahi Mosque @ Patel Mosque, Huzara Tomb and Kabarasthan Mahal Bagayat on Indi Road, Vijayapura is a registered wakf under Section 25 and 26 of the Act. It is -4- NC: 2023:KHC-K:7018 WP No. 200410 of 2019 contended by the petitioner-Board that the property bearing Sy.No.134 of Mahalbagayat village, Vijayapura is totally measuring 16 acres 33 guntas, out of which 4 acres was registered as wakf property as per Certificate of Registration dated 17.11.1979 (Annexure-A). It is averred in the writ petition that in the aforementioned property, Shahi Mosque @ Patel Mosque, Huzara Tomb and Kabarasthan, Mahalbagayat on Indi Road are in existence and the remaining extent of land stands in the name of one Mr.Vittal Manappa Gadhigappa Gowli. It is further stated in the writ petition that the Shahi mosque and other mosques were registered under Section 25 and 26 of the Wakf Act in the year 1979. It is also contended that the local Managing Committee has renovated the mosque and therefore, it is the case of the petitioner that the petitioner-Board is in possession and enjoyment of the property.
3. It is further averred in the writ petition that the respondent No.2 has made a proposal for formation of two -5- NC: 2023:KHC-K:7018 WP No. 200410 of 2019 lane State Highway and the proposal was sent for acquisition of the land in question. In furtherance of the same, the respondent authorities have issued notification under Section 4(1) of the Land Acquisition Act (for short, hereinafter referred to as 'the LA Act'), dated 14.08.1980 to an extent of 2 acres 1 gunta in Sy.No.134 and other survey numbers. The Deputy Commissioner, has issued final notification dated 16.03.1982 under Section 6(1) of the LA Act and it is contended that name of the wakf institution or the name of the petitioner-Board has not been shown in the above notifications. In the said notifications, name of Mr.Vittal Manappa Gadhigappa Gowli has been shown and he has not filed objection to the said proposed acquisition. It is further averred in the writ petition that the respondent authorities have passed award dated 18.05.1983 (Annexure-C) and in the said award also name of the wakf institution has not been notified. The petitioner-Board came to know that the respondent authorities are interfering with the existing mosque in Sy.No.134 and accordingly, the petitioner has -6- NC: 2023:KHC-K:7018 WP No. 200410 of 2019 addressed a letter dated 21.12.2018 (Annexure-D) to the competent authorities to take appropriate decision in the matter, alternatively, sought for change the alignment of service road so as to safeguard the sentiments of Muslim community. Feeling aggrieved by the apprehension that the respondent authorities are interfering with the existing mosque, the petitioner-Board has presented this writ petition.
4. I have heard Smt.S.R.Anuradha, learned Senior Counsel appearing on behalf of Sri.P.S.Malipatil, learned counsel for the petitioner-Board and Sri.Shivakumar R. Tengli, learned Additional Government Advocate for respondent Nos.1 and 2, Sri R.V.Naik, and Sri.Basavaraj M.Angadi, learned counsel for respondent No.3 and Sri.Bidan Chandran, learned counsel for Sri.Santosh Kumar Maradi, learned counsel for respondent No.4.
5. Smt.S.R.Anuradha, learned senior counsel appearing on behalf of Sri.P.S.Malipatil, learned counsel -7- NC: 2023:KHC-K:7018 WP No. 200410 of 2019 for the petitioner-Board contended that the existing wakf property is situate for more than three centuries and in this regard certificate of registration was issued on 17.11.1979 and therefore, the impugned action by the respondent authorities interfering with the existing mosque is not correct. It is the submission of the learned senior counsel that the mosque is situate in four acres out of 16 acres 33 guntas and therefore, the entire acquisition proceedings are liable to be quashed on the ground that the name of the mosque is not reflected in the acquisition notifications issued by the respondent authorities. It is also urged by the learned senior counsel that the petitioner-Board is in possession and enjoyment of the land in Sy.No.134 and respondents have not taken possession even after the issuance of the notifications and therefore, the petitioner-Board cannot be dispossessed without following due process of law.
6. Nextly, learned senior counsel appearing for the petitioner-Board contended that the impugned acquisition -8- NC: 2023:KHC-K:7018 WP No. 200410 of 2019 was initiated by issuing notification under Section 4(1) of the LA Act on 14.08.1980 and as on the issuance of the said notification, certificate of registration as per Annexure-A was issued and accordingly, sought for allowing the prayers made in the writ petition.
7. To buttress her arguments, learned senior counsel places reliance on the judgment of the Hon'ble Apex Court in the case of State through CBI vs. S.J.Choudhary reported in AIR 1996 SC 1491.
8. Per contra, Sri. Shivakumar R. Tengli., learned Additional Government Advocate for respondent Nos.1 and 2 argued that the land in question has been acquired for the purpose of laying National Highway and the existence of the mosque as contended by the petitioner-Board has recently been built and accordingly, countered the submission made by the learned senior counsel appearing for the petitioner-Board. It is further submitted by the learned Additional Government Advocate that acquisition is -9- NC: 2023:KHC-K:7018 WP No. 200410 of 2019 for the purpose of laying National Highway and involves larger public interest and therefore, sought to justify the action of the respondents.
9. Sri.Bidan Chandran, learned counsel appearing for respondent No.4-National Highway Authority of India contended that the land bearing Sy.No.134 of Mahalbagayat village, Vijayapura originally belong to the family of Vittal Manappa as per revenue records and to an extent of 2 acres 7 guntas of land in Sy.No.134 was notified for acquisition for the purpose of laying National Highway.
10. Referring to Joint Measurement Certificate (JMC) dated 04.11.1981, learned counsel for the respondent No.4 submitted that as on the date of joint measurement made by the Assistant Director of Land Records, Bijapur Division, there was no structure muchless the mosque as contended by the petitioner-Board. It is the categorical argument of the learned counsel for
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 respondent No.4 that the JMC report was prepared after enquiry at the spot as mentioned in the JMC report and therefore, contended that the mosque alleged to have been situate is a recent construction subsequent to the issuance of the acquisition notifications and accordingly, sought for dismissal of the writ petition. In support of his submission, learned counsel places reliance on the decision of the Hon'ble Apex Court in the case of Ved Prakash and Others vs. Ministry of Industry, Lucknow and Another reported in (2003) 9 SCC 542 and in the case of Madanuri Sri Rama Chandra Murthy vs. Syed Jalal reported in (2017) 13 SCC 174. Referring to proposition of law made in the aforementioned decisions, he submitted that in order to issue notification to declare a property belonging to a Wakf Board, the formal enquiry has to be conducted. In the absence of such material, inference could be drawn that the mosque in question is not situate at the time of issuing the acquisition proceedings.
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11. It is further contended by the learned counsel for respondent No.4 that the construction of the National Highway is almost completed and as the petitioner-Board is not allowing to complete the entire project and obstructing the bit of land, in the National Highway and in this regard, he submitted that the Highway connecting Solapur and Chitradurga on NH-13 has taken up by the respondent authorities and therefore, each of the Highways specified in the schedule is declared to be a National Highway and therefore, sought for interference of this Court to dismiss the writ petition. He further contended that the petitioner-Board has to establish its right over the schedule property and thereafter, it is open for the petitioner-Board to claim compensation in accordance with law. He also invited the attention of the Court to the award passed by the respondent authorities and submitted that there is no mention of the existence of any mosque in the land in question. He also submitted that, if at all any property is acquired and notified by the petitioner-Board for issuance of Certificate of Registration,
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 there shall be a publication by the Government in the Official Gazette and in the absence of the same, the Certificate of Registration as produced by the petitioner cannot be accepted.
12. In reply to the arguments advanced by the learned counsel appearing for the respondents Smt.S.R.Anuradha, learned senior counsel for the petitioner-Board refers to the rejoinder filed by the petitioner-Board on 07.08.2023 and submitted that the committee has been constituted on 02.02.1977 by the office of the Patel Masjid Committee insofar as the mosque in question is concerned and therefore, she contended that the existing structure is a wakf property and this Court is having no jurisdiction to decide whether the structure is existing on Sy.No.134, is a wakf property or not. She also emphasised that once the lands were retrieved from the persons who were in illegal occupation, the petitioner- Board has taken steps for registration and the said Certificate of Registration is produced at Annexure-A and
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 same was issued pursuant to the issuance of public notice and drawing mahazar and accordingly, she contended that the respondents have no semblance of right to interfere with the property in question.
13. Having heard the learned counsel for the parties, I have given my anxious consideration to the issue involved in this petition. I have noticed from the order sheet that, this Court by order dated 25.09.2020, directed the Superintending Archeologist, Archeological Survey of India (ASI), Dharwad Circle to make a scientific assessment of the age of the mosque in existence and to file a report in this regard. Pursuant to the same, Superintending Archaeologist, ASI filed a report dated 07.10.2020 before this Court. The report of the ASI reveals that the mosque in question is about 300 years old ancient structure and built in 16 th - 17th century AD.
14. In the light of the submission made by the learned counsel appearing for the parties, it is the
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 contention of the petitioner-Board that the mosque in question is situate for more than a century in Sy.No.134 of Mahalbagayat village, Vijayapura taluk and district and therefore, the acquisition proceedings are liable to be quashed insofar as the land in question is concerned. On the other hand, the respondent authorities have produced the material stating that the mosque is recently built and not in existence as on the date of the acquisition.
15. It is not in dispute that the land measuring 4 acres out of 16 acres 33 guntas of Mahalbagayat village, Vijayapura was registered as wakf property as per Certificate of Registration dated 17.11.1979. The respondents have issued preliminary notification under Section 4 (1) of the LA Act on 14.08.1980 proposed to acquire the land for the construction of National Highway. Thereafter, the authorities have issued notification under Section 6(1) of the LA Act on 06.05.1982. Perusal of the revenue records would indicate that the land in question is belonging to one Vittal Manappa Gadigeppa Gowli. The
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 land in question was acquired for the purpose of construction of National Highway. The Certificate of Registration was made in the name of wakf as per M.R.No.1448 and as per the order No.3855 by the Tahasildar, Vijayapura was on 20.02.1986. Though the petitioner-Board has produced the Certificate of Registration dated 17.11.1979 as per Annexure-A, no further records or publication has been made by the Government notifying the land in question as a wakf property. The land measuring 2 acres 7 guntas was acquired by the respondent authorities for the purpose of laying National Highway. Hon'ble Apex Court in the case of Madanuri Sri Ramchandra Murthy (supra) at para- 12 to 21 held as follows:
"12. 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
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 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.
13. 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
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 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.
14. 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.
15. 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
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 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.
16. 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
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 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.
17. 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
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 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.
18. 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:
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 "6. 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."
19. Sub-section (1A) of Section 4 is inserted by Act 27 of 2013 w.e.f. 1.11.2013 and the same reads thus:
"4. (1-A) 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:
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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."
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 (1-A) of Section 4 also will be of no avail to the plaintiff.
20. 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.
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 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.
21. 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."
(emphasis supplied)
16. Applying the principle laid down by the Hon'ble Apex Court in the aforesaid case, the condition precedent for issuing Certificate of Registration in respect of declaring a property as wakf presupposes a survey by the survey commissioner and preparation of report and forwarding the same to the State Government to notify the same in the Official Gazette by the Government. There must be a due enquiry and valid survey and therefore, in the absence of such material, it cannot be considered as wakf property. In that view of the matter, I am of the view that, the submission made by the learned counsel
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 appearing for the respondents is just and proper. This Court in the case of Shah Mansur Peer Dargah and Another etc. vs. State of Karnataka and Others reported in AIR 1980 KAR 118 held that the provision to issuance of the gazette notification while declaring the property belonging to the wakf is mandatory. At para-11, this Court has held as follows:
"11. Section 30 of the Act provides for continuation of registration of wakfs made under the corresponding provisions of the Act. Section 30 saves the earlier registrations and ensures their continuity and administration by the Board. On the application of the Act to a State or an area, Chap. II of the Act empowers the State Government to appoint a Commissioner of Wakfs for making a survey of wakf properties and their registration in (the manner provided in that Chapter, the scope of which has been authoritatively decided by the Supreme Court in Board of Muslim Wakfs, Rajasthan v. Radha Kishan (AIR 1979 SC 289). Section 25 of the Act provides for registration of wakfs created on or after the commencement of the Act. Sub-section (8) of Section 25 of the Act provides for the filing of an application within a period of three months from the commencement of
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 the Act or within a period of three months from the date of the creation of a new wakf. Section 27 of the Act empowers the Board to collect information regarding any property that has not been registered either in the survey or in the earlier registrations and decide whether they are wakf properties or not. Section 28 of the Act, authorises the Board to direct a muthavalli to apply for the registration of a wakf or direct him to supply any information regarding a wakf or may itself cause the wakf to be registered or at any time amend the register of wakfs. An examination of these provisions reveal that every possible contingency to register a wakf and any of its properties has been visualised by the legislature and extensive and suo motu powers have been conferred on the Board to remedy every situation. By construing Section 25 (8) of the Act, as mandatory, no injustice, hardship or inconvenience is caused to the Board, but the object of the statute will be furthered and will be achieved. An examination of the provisions of the Act, their scope, object and the consequences that would ensure, the only conclusion that can be drawn is that sub-section (8) of Section 25 of the Act is an imperative or mandatory enactment and is not a directory enactment as conclusion, it follows that the application made by respondent No. 3 which was admittedly barred by time, in the absence of
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 any provision for condonation of delay in the Act, could not have been entertained by the Board and any relief granted on the said application, but the Board in doing so, has committed an error of jurisdiction and illegality apparent on the face of the record and its order is therefore, liable to be quashed."
17. The Hon'ble Apex Court in the case of Salem Muslim Burial Ground Protection Committee vs. State of Tamil Nadu and Others reported in AIR 2023 SC 2769 held at para-31 to 33 as under:
"31. The Wakf Act, 1954, which actually is relevant for our purpose, provides that, first, a preliminary survey of wakfs has to be conducted and the Survey Commission shall, after such inquiry as may be deemed necessary, submit its report to the State Government about certain factors enumerated therein whereupon the State Government by a notification in the official Gazette direct for a second survey to be conducted. Once the above procedure of survey is completed and the disputes arising thereto have been settled, on receipt of the report, the State Government shall forward it to the Wakf Board. The Wakf Board on
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 examining the same shall publish the list of wakfs in existence with full particulars in the official Gazette as contemplated under Section 5 of the Act. Similar provisions exist under the Waqf Act, 1995.
32. A plain reading of the provisions of the above two Acts would reveal that the notification under Section 5 of both the Acts declaring the list of the wakfs shall only be published after completion of the process as laid down under Section 4 of the above Acts, which provides for two surveys, settlement of disputes arising thereto and the submission of the report to the State Government and to the Board. Therefore, conducting of the surveys before declaring a property a wakf property is a sine qua non. In the case at hand, there is no material or evidence on record that before issuing notification under Section 5 of the Wakf Act, 1954, any procedure or the survey was conducted as contemplated by Section 4 of the Act. In the absence of such a material, the mere issuance of the notification under Section 5 of the Act would not constitute a valid wakf in respect of the suit land. Therefore, the notification dated 29.04.1959 is not a conclusive proof of the fact that the suit land is a wakf property. It is for this reason probably that the appellant Committee had never
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NC: 2023:KHC-K:7018 WP No. 200410 of 2019 pressed the said notification into service up till 1999.
33. In Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead) by Lrs., it was observed that the Wakf Board should follow the procedure as required under section 4, 5 and 6 or Section 27 of the Wakf Act before notifying the wakfs under Section 5 of the Act."
(emphasis supplied)
18. In that view of the matter, as the petitioner- Board has failed to establish that the land in question is belonging to the wakf and has not produced the relevant documents to demonstrate that the surveying of the land, preparation of report etc., as stated by the Hon'ble Apex Court in the aforementioned decisions, I am of the opinion that the petitioner has not made out a case for interference in this writ petition. Accordingly, the writ petition is dismissed.
Sd/-
JUDGE VNR List No.: 1 Sl No.: 65