Waqf Board Can Declare Property As Waqf Only After Inquiry Under Section 40 Waqf Act: SC: State Of A P Vs A P State Waqf Board

JUDGEMENT SUMMARY:
State Of A.P. vs A.P. State Waqf Board

DATE OF JUDGEMENT:
7th February 2022

JUDGES:
Hemant Gupta, J.
V. Ramasubramanian, J.
 

PARTIES:
State of A.P. (Now State of Telangana) (Appellant)
A.P. State Waqf Board & Ors. (Respondent)

SUBJECT

The Supreme Court ruled that Waqf Board can declare property as waqf only after inquiry under section 40 Waqf Act. The Waqf Board while declaring a property as waqf exercises quasi-judicial function therefore, it was having to exercise it power under Section 32 read with Section 40 of the Act.

AN OVERVIEW

1. In 1948, with the commencement of Operation Polo, Hyderabad was annexed into India. Major General J.N. Choudhary was appointed as the Military Governor of the State of Hyderabad. With the issuance of two Farmans by the Sovereign, the Military Governor was vested with the authority to administer the State. With another Farman, Mr. M.K. Vellodi, I.C.S. was appointed as the Chief Minister and the powers of the Military Governor was transferred to him in December of 1949.
2. The Military Governor had introduced the Abolition Regulation to abolish jagirs and to provide commutation and for payment of interim allowance to Jagirdars and Hissedars which was published in August of 1949. The Chief Minister later in January of 1950 had introduced the Commutation Regulation which determined the terms of commutation of jagirs after the termination of interim allowance payable under the Abolition Regulation.
3. These two Regulations were certified by the President of India under Article 31(6) of the Constitution, which then existed. In June of 1951, with the incorporation of Schedule IX, the Abolition Regulation and the Commutation Regulation were included in the Schedule IX. Thus, the Regulation could not be deemed void on the grounds of inconsistency with Part III of the Constitution of India.
4. Akbar Hussaini had sought an inam Inquiry of Jagir villages in 1926 which were claimed to be mash land by Nizam Atiyat Court in 1957. The Nazim Atiyat had dismissed the review and it was assailed before the Board of Revenue which again was dismissed in 1958. The aggrieved persons had filed a Writ Petition against the Order n before the High Court of Judicature at Hyderabad in 1959 which held that the disputed lands constituted madad mash.
5. The Errata Notification had published in the Official Gazette of the State of Andhra Pradesh on behalf of the Andhra Pradesh Waqf Board in 2006 declaring 1654 acres and 32 guntas of land as Waqf Property.
6. This was challenged by the A.P., the A.P. Infrastructure Development Corporation and other alleged tenants or pattadars under the Jagirdar before the High Court in 2007 by filing a Writ Petition. The High Court of Andhra Pradesh had dismissed the petition in 2012.

IMPORTANT PROVISIONS

Constitution of India

• Article 12- Defines State
• Article 31- Right to Property
• Article 32-Remedies for the enforcement of rights in Part III are outlined.
• Article 226- Empowers High Court to issue certain writs.

Waqf Act 1995

• Section 5- Outlines publication of Aufaq
• Section 32-Outlines powers and functions of Waqf Board
• Section 40- Provides for the decision whether a property is waqf property or not
• Section 83- Outlines the constitution of Tribunals
• Section 105- Empowers the Board and the Chief Executive Officer to call for document’s copies to be furnished.

ISSUES

The Apex Court faced the following issues:

1. Whether relegating the parties to remedy before the Waqf Tribunal was justified on part of the High Court?
2. Whether the Government could dispute over the validity of errata notification before the Writ Court under Article 226 of the Constitution?
3. Whether the State was estopped from challenging the notification inter-alia on the ground that Government Pleader was present before both the Nizam Atityat and High Court and the notification was published in State Government Gazette?
4. Whether the Waqf Board had exercised the power conferred under Section 32 read with Section 40 Waqf Act to publish the notification?
5. Whether the second survey report or order of the Atiyat Court were sufficient material with the Waqf Board to publish the Errata notification under Section 5 of the Waqf Act?
6. Whether the order of the Atiyat Court dealt with the question of succession to receive grants or was it relevant to determine the nature of grant as conditional grant for the service of the Dargah?
7. Whether the land in question was waqf land even though, the Jagir of the village was abolished or the Land was vested in the State?

ANALYSIS OF THE JUDGEMENT

1) The Constitutional Bench of the Apex Court had considered the validity of the Abolition Regulation and the Commutation Regulation in Sarwanlal v. State of Hyderabad case and had held that:

a) As the authority to resume the jagirs and to extinguish the interests of the jagirdars was delegated to the Military Governor by the Sovereign, it was the discretion of the Sovereign to issue orders or regulations contrary to those which were issued by the Military Governor.

b) There was no evidence recorded to suggest that before and after the promulgation of the Abolition Regulation, the Nizam had either withdrawn the Military Governor’s authority or issued any order or regulation inconsistent with it.

2) In Sikander Jehan Begum v. A.P. State Govt , it was held that the Military Governor and the Chief Minister had all the legislative and executive powers as the Sovereign had prior to annexation. The effects of the Abolition Regulation were:

a) All jagir lands were incorporated into State lands and their administration was transferred to the jagir Administrator who was to be appointed by the Government.

b) The provisions of making cash payments out of the net income of the jagirs to the Jagirdar or Hissedars or maintenance holders was made necessary.

c) The Commutation Regulation was made for the payment of compensation by way of the commuted value of the Jagir which had to be determined by the Jagir Administrator.

3) The State had an alternative efficacious remedy available to seek adjudication from the Waqf Tribunal. In K.K. Kochunnis case, it was held that the mere existence of an adequate alternative legal remedy was not a ground for throwing out a petition under Article 32 in cases whether breach of fundamental rights was alleged or prima facie established.

4) In Radha Krishan Industries v. State of H.P., it was held that HC could issue writs for the enforcement of fundamental rights as well as for any other purposes under Article 226 of the Constitution. The exceptions to the rule of alternate remedy arose where:

a) The Writ Petition was filed for the enforcement of Fundamental Rights

b) Principles of natural justice were violated

c) The order or proceedings were completely without jurisdiction

d) The vires of a legislation was challenged

5) The Government had been reflected as the owner of the land since 1912-13 and had exercised the right of ownership as a successor of the Sovereign. Subsequently, after the promulgation of Abolition Regulation and Abolition Regulation and payment of commutation, the land was transferred from State to the payment of commutation. A public notice had invited objection if any for the same and nothing was received as a result, the Corporation made further allotment to various corporate entities.

6) As per definition of State under Article 12 of the Constitution, Waqf Board was a statutory authority established under the Act. In M.J. Sivani and others v. State of Karnataka, the Apex Court had held that the actions of the State were required to be informed by reason. Those action which was uninformed by reason amounted to arbitrariness and were liable to be challenged Article 226 or Article 32 of the Constitution. Therefore, the State acting as a juristic entity had the right to protect the land just like an individual invoking the jurisdiction of the High Court by filing writ against the action of the Waqf Board.

7) Since the grants were to be paid by State Government, the Government Pleader was present before the Nazim Atiya for limited purpose. However, the State was neither a party before the Nazim Atiyat nor before the HC. The issue that was being disputed upon was as to whom the grants would be payable rather than the liability of the State to grant payment.

8) The publication in the Official Gazette was not just for State’s affairs but also had multiple uses. In Universal Cans & Containers Ltd. v. Union of India, the HC of Delhi had noted that Part III, Section 4 of the Gazette was meant for Miscellaneous Notification which were issued by the Statutory bodies.

9) The publication of the notification was made under Section 5(2) of the Waqf Act by the Waqf Board and it was not at the instance of the State Government. The notification carried by the Official Gazette at the instance of the Waqf Board was not binding upon the State Government. It merely had the presumption of knowledge to the general public as any advertisement published in a newspaper.

10) Under Section 32 (2) (n) of Waqf Act, the Waqf Board was conferred with the investigate and determine the nature and extent of waqf and waqf property whenever necessity arose. This power was exhaustive and also independent of the Section 40 of the Act. The HC of Kerela in A.P.A. Rasheed had held that the power of the Board under Section 32 of the Act were powers of superintendence in administration and the board was further empowered to pass interim order along with the final order.

11) In Ezhome Sunni Valiya Juma Masjid v. Kerala State Waqf Board, the HC of Kerela had held that when the Waqf Board decided a Lis falling within its jurisdiction based on materials made available before it, after hearing the parties and its decision has far reaching repercussion on the rights of the parties, the Board is said to have exercised the quasi-judicial function. The action of the Board in the particular was not purely an administrative function. While the exercise of the quasi-judicial function, the power of the Board under Section 32(2)(n) should comply with the procedure prescribed in Section 40, i.e., inquiry.

12) The Waqf Board had issued the Errata notification based on- Nazim Atiya’s order and the second survey report. Both of them might considered as material available. The inquiry, however, was not conducted by the Board and further the fact whether the land was waqf property or not was not determined. Therefore, it could be deduced that the Errata notification was not issued in terms of Section 32 read with Section 40 of the Waqf Act.

13) The Waqf Board was conferred with the power to public notification under Section 5 of the Waqf Act. The second survey report was not submitted to the State Government, however, it was only a ministerial action thus was inconsequential.

14) In Piara Singh v. State of Punjab, the Supreme Court had held that a corrigendum could be issued only to correct a typographical error or omission. However, it would neither have the effect of law nor take way or nullify the rights of a person. The Errata notification have to be issued for the correction of only arithmetical and clerical mistake and the disputed land could not be included under the guise of an errata notification.

15) Additionally, there was no inquiry or survey report called by the State Government by appointing a Survey Commissioner. The second survey report by the Waqf Board had many interpolations visible to the naked eye which created the doubt on the report’s correctness.

16) Under section 3-A of the Enquiries Act, the Atiyat Courts was empowered to inquire into any right, title or interest notwithstanding the enactment of Abolition Regulation. The Act was schemed to conduct inquiry regarding the entitlement to receive Atiyat grant and to decide the right of succession amongst the person entitled to receive the grants. Enquiries Act was alone applicable in respect of Atiyat grants.

17) Under Section 10(2)(i) of Commutation Regulation, 90% of the gross basic sum was payable to the religious and charitable institutions. Therefore, the claim of the Waqf Board was restricted only to 90% of the amount of the gross basic sum that was referred to in Section 4 of the Commutation Regulation. The Atiyat grants were abolished by the Abolition Regulation and the Atiyat Courts had the jurisdiction to decide issues relating to succession of the commutation amount payable to the heirs.

18) In Raja Rameshwar Rao and Another v. Raja Govind Rao, the SC had held that the jagirs granted in Hyderabad State were not hereditary. The to resume the grant was vested in the State at its pleasure.

19) The Sovereign had granted permission to redeem land to Akbar Hussaini as he was the owner of all lands within his State. The jagirdars were permitted to enjoy the usufruct thereof and had no right to alienate the property. After his death, it was Sovereign’s discretion to regrant the same land to his son. At all times, it was the Sovereign who has had the title over the land.

20) Section 16 of the Abolition Regulation had specifically abolished the jagir granted for a religious or public purpose. In the particular case, jagir was granted for the service of the Dargah and it would be a minor right as against the jagir granted for religious purpose. Therefore, the land given for Mashrut-ul- Khidmat could be abolished by the Sovereign by enacting the Abolition Regulation and consequently Commutation Regulation which were absolute.

CONCLUSION

The Supreme Court allowed the appeal setting aside the orders passed by the High Court. The Errata notification dating 2006 was quashed. The disputed land was vested with the state and/or Corporation free from any encumbrance. It was asserted that the alleged tenants or pattadars under the Jagirdar had started paying rent to the State after abolition of jagirs and therefore, claimed possession on some part of the land. The appellants were at liberty to seek remedy for the redressal of their grievances before an appropriate forum in accordance with law.

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