Smt. R. Bhagyamma & Anr. vs Karnataka State Board of Wakfs & Ors.

a. To call for the entire records from the Respondents No. 2 and 3 in respect of earlier Notification issued in the year 1965 and subsequent developments do also the Notification issued by way of corrigendum.

b. To issue Writ of Certiorari and Quash the Notification at Annexure-H1 issued under revised corrigendum bearing No. KBW/MSC/35/2009-10 dated 08.07.2010 in respect of land bearing Sy. No. 56/1A measuring an extent of 1 Acre 12 Guntas and consequently to declare that the Respondents No. 2 and 3 have no manner in respect of Petitioners' land bearing Sy.No. 56/1A an extent of 1 Acre 12 Guntas detailed in the schedule.

c. To issue a writ of certiorari and quash the Notification Prayers-'c' & 'd' are dtd:17.10.2019, bearing No. RD 115/BHUDAA 2019 issued by the Govt of Karnataka/4th Respondent vide. Annexure-L notifying the land in question bearing Sy. No. 56/1A of Jarakabandekaval village, Yelahanka Hobli, Yelahanka Taluk (then Bengaluru North Taluk), Bengaluru District measuring to an extent of 1 Acre 12 Guntas and consequently declare that the Respondents have no manner of right whatsoever with respect to the Petitioners' land as detailed in the schedule.

d. To issue a direction in the nature of Writ of Mandamus against the Respondents, directing them to remove all the illegal encroachments made (including the burials) in the private land belonging to the Petitioners in Sy.No. 56/1A of Jarakabandekaval village, Yelahanka Hobli, Yelahanka Taluk (then Bengaluru North Taluk), Bengaluru District measuring to an extent of 1 Acre 12 Guntas or in the alternative permit the Petitioners to remove the illegal encroachments made (including the burials) in the private land belonging to the Petitioners in Sy.No. 56/1A of Jarakabandekaval village, Yelahanka Hobli, Yelahanka Taluk (then Bengaluru North Taluk), Bengaluru District measuring to an extent of 1 Acre 12 Guntas with the assistance of Jurisdictional Police.

e. To issue appropriate writ or direction against the Respondents No. 2 and 3 not to trespass or do any activities in the land bearing Sy. No. 56/1A formed with sites so as to protect and safeguard the properties.

f. To grant such other relief or reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case.

g. Cost of the proceedings.

158.

The test to determine as to whether an institution discharges quasi-judicial function came up for consideration before this Court in a judgment reported as Indian National Congress. This Court held that if law requires that an authority before arriving at a decision must make an inquiry, such a requirement of law makes the authority a quasi-judicial authority. This Court held as under : (SCC p. 700, paras 25 & 27)

“25.

Applying the aforesaid principle, we are of the view that the presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi-judicial authority is sufficient to hold that such a statutory authority is quasi-judicial authority. However, in the absence of a lis before a statutory authority, the authority would be quasi-judicial authority if it is required to act judicially. ***

27.

What distinguishes an administrative act from a quasi-judicial act is, in the case of quasi-judicial functions under the relevant law the statutory authority is required to act judicially. In other words, where law requires that an authority before arriving at a decision must make an inquiry, such a requirement of law makes the authority a quasi-judicial authority.”

159.

In a Constitution Bench judgment reported as Province of Bombay v. Kusaldas S. Advani , this Court deduced principles as to when an authority can be said to exercising quasi-judicial functions. It was held that the absence of two parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially. This Court held as under : (SCC pp. 608-609, paras 80-81)

“80.

What are the principles to be deduced from the two lines of cases I have referred to? The principles, as I apprehend them, are:

80.1.

(i) * * *

80.2.

(ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.

81.

In other words, while the presence of two parties besides the deciding authority will prima facie, and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially.”

160.

This Court in a judgment reported as State of H.P. v. Mahendra Pal [State of H.P. v. Mahendra Pal, (1999) 4 SCC 43] held that a quasi-judicial function stands midway between a judicial and an administrative function. The primary test is as to whether the authority alleged to be a quasi-judicial one, has any express statutory duty to act judicially in arriving at the decision in question. If the reply is in the affirmative, the authority would be deemed to be quasi-judicial, and if the reply is in the negative, it would not be. It was held as under : (SCC pp. 56-57, para 9)

“9.

It follows, therefore, that an authority is described as quasi-judicial when it has some of the attributes or trappings of judicial functions, but not all. This Court in Province of Bombay v. Kusaldas S. Advani [Province of Bombay v. Kusaldas S. Advani, 1950 SCC 551 : 1950 SCR 621] dealt with the actions of the statutory body and laid down tests for ascertaining whether the action taken by such a body was a quasi-judicial act or an administrative act. The Court approved the celebrated definition of the quasi-judicial body given by Atkin, L.J., as he then was in R. v. Electricity Commissioners [R. v. Electricity Commissioners, (1924) 1 KB 171 : 130 LT 164 (CA)] in which it was held : (KB p. 205)

‘… Whenever any body of persons having legal authority to determine questions affecting rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.’

The aforesaid definition was accepted as correct in R. v. London County Council and many subsequent cases both in England and in India. Again this Court in Radeshyam Khare v. State of M.P. relying upon its earlier decision held : (SCC OnLine SC paras 11-12)

‘11. … It will be noticed that this definition insists on three requisites each of which must be fulfilled in order that the act of the body may be said to be quasi-judicial act, namely, that the body of persons : (1) must have legal authority, (2) to determine questions affecting the rights of parties, and (3) must have the duty to act judicially. Since a writ of certiorari can be issued only to correct the errors of a court or a quasi-judicial body, it would follow that the real and determining test for ascertaining whether an act authorised by a statute is a quasi-judicial act or an administrative act is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act judicially as required by the third condition in the definition given by Atkin, L.J.…

12.

Relying on Paras 114 and 115 of Halsbury's Laws of England, 3rd Edn., Vol. 11 at pp. 55-58 and citing the case of R. v. Manchester Legal Aid Committee learned counsel for the appellants contends that where a statute requires a decision to be arrived at purely from the point of view of policy or expediency the authority is under no duty to act judicially. He urges that where, on the other hand, the order has to be passed on evidence either under an express provision of the statute or by implication and determination of particular facts on which its jurisdiction to exercise its power depends or if there is a proposal and an opposition the authority is under a duty to act judicially. As stated in Para 115 of Halsbury's Laws of England, Vol. 11 at p. 57 the duty to act judicially may arise in widely differing circumstances which it would be impossible to attempt to define exhaustively. The question whether or not there is a duty to act judicially must be decided in each case in the light of the circumstances of the particular case and the construction of the particular statute with the assistance of the general principles laid down in the judicial decisions. The principles deducible from the various judicial decisions considered by this Court in Kusaldas S. Advani at p. 725 (of SCR) : (at p. 260 of AIR) were thus formulated.…’ ”

161.

This Court in a judgment reported at Kranti Associates [Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496 : (2010) 3 SCC (Civ) 852] held as under : (SCC pp. 510-11, para 47)

“47.

Summarising the above discussion, this Court holds:

(a)

In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. ***

(d)

Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. ***

(f)

Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.”

“10.

The aforementioned provisions dealing with the powers and duties of the Waqf Board and other related provisions under the Act would reveal there may be many acts which may be done by the Board. Among them, some are obviously administrative in nature. But, when the Board is called upon to decide a lis which falls within its jurisdiction and has to be done based on the materials made available before it, after hearing the parties and its decision has far-reaching repercussion on the rights of the parties, it has a quasi-judicial function. (See the decision in Puthucode Juma — Ath Committee v. Abdul Rahiman). A quasi-judicial function is an administrative function which the law requires to be exercised in some respects as if it were judicial. It is subject to some measure of judicial procedure. As regards quasi-judicial functions, they cannot be delegated unless the authority concerned is enabled to do so expressly or by necessary implication. The general principle is that where any kind of a decision on a lis has to be made, it must be made by the authority empowered by the statute concerned and by no one else. We will deal with the same further, a little later.”

164.

Therefore, the Wakf Board has power to determine the nature of the property as wakf under Section 32(2)(n) but after complying with the procedure prescribed as contained in Section 40. Such procedure categorically prescribes an inquiry to be conducted. The conduct of inquiry presupposes compliance of the principles of natural justice so as to give opportunity of hearing to the affected parties. 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 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 under Section 40 of the 1995 Act.

165.

Since there is no determination of the fact whether the property in question is a wakf property after conducting an inquiry in terms of Section 40(1) of the 1995 Act, the errata notification cannot be deemed to be issued in terms of Section 32 read with Section 40 of the 1995 Act. Such determination alone could have conferred right on the affected parties to avail the remedy of appeal under Section 40 of the 1995 Act.

166.

The reliance on the proviso to Section 40(3) of the 1995 Act, contemplating notice to the registered trust or society in case the Board has any reason to believe that any property is wakf and is registered under any of the Acts is absolutely misconceived. These provisions deal with an altogether different situation. A trust or society is already registered but if the 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.

“31.

It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under : (Nazir Ahmad case , SCC OnLine PC)

‘… where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.’

32.

This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, (1954) 1 SCC 296 : 1954 SCR 1098 : AIR 1954 SC 322] and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh [State of U.P. v. Singhara Singh, 1963 SCC OnLine SC 23 : AIR 1964 SC 358 : (1964) 1 Cri LJ 263 (2)] and the rule laid down in Nazir Ahmad case was again upheld. The rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law.”

169.

A Constitution Bench in a judgment reported as CIT v. Anjum M.H. Ghaswala reiterated that 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. It was held as under : (SCC p. 644, para 27)

“27.

Then it is to be seen that the Act requires the Board to exercise the power under Section 119 in a particular manner i.e. by way of issuance of orders, instructions and directions. These orders, instructions and directions are meant to be issued to other income tax authorities for proper administration of the Act. The Commission while exercising its quasi-judicial power of arriving at a settlement under Section 245-D cannot have the administrative power of issuing directions to other income tax authorities. It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. If that be so, since the Commission cannot exercise the power of relaxation found in Section 119(2)(a) in the manner provided therein it cannot invoke that power under Section 119(2)(a) to exercise the same in its judicial proceedings by following a procedure contrary to that provided in sub-section (2) of Section 119.”

170.

Therefore, we are unable to agree with Mr Ahmadi that since it was only a ministerial part of submission of the second survey report to the State Government, therefore, the Board had the jurisdiction to publish notification under Section 5.

171.

The question now to be examined is whether the Board could issue the errata notification after a lapse of 17 years from the date of first notification i.e. 9-2-1989. The exercise leading to the notification started with a letter from Syed Safiullah Hussaini, Mutawalli on 30-1-2005. He is the mutawalli mentioned in the first notification published in the year 1989. Since the notification was issued with him as mutawalli, then his inaction for 17 long years speaks volumes of his bona fide in initiating the process to include the large area of land as wakf.

172.

We would need to examine as to what is the scope and meaning of the word “errata”. “Errata” is a term of French origin which means a thing that should be corrected. It means a mistake in printing or writing. Reference may be made to a judgment reported as Parvati Devi v. State of U.P. It was held as under : (SCC OnLine All paras 20-21, 23-25 & 27)

“20.

The word “Erratum” (French) means a mistake in printing or writing; a note drawing attention to such a mistake. A list of mistakes added at the end of a book.

21.

The word “Errata” is a word of French origin and means “a thing that should be corrected”. After a book has been printed, it often happens that certain mistakes are found to have been overlooked. In later editions, it is usual to insert, a list of such mistakes and to point out the necessary corrections. These are called “corrigenda”. ***

23.

In Judicial Dictionary by Justice L.P. Singh and Majumdar, 2nd Edn., p. 552, while quoting the following passage in Asom Rajyik Udyog Karmi Sangha v. State of Assam [Asom Rajyik Udyog Karmi Sangha v. State of Assam, 1995 SCC OnLine Gau 140 : (1996) 1 Gau LR 236] , Gau LR at p. 241, the word “corrigendum” has been defined as follows:

‘The dictionary meaning of the word “corrigendum” means things to be correct. It means there must be an error and there is a necessity to amend and rectify it. In the garb of corrigendum, a rule cannot be altered and or changed, but that is what appears to have been done in the instant case. In order to alter or modify a rule the same procedure adopted in making of the rule have to be gone through.’

24.

The meaning and application of the word “corrigendum” has been considered by the Courts time and again. In CST v. Dunlop India Ltd. this Court held that corrigendum is issued to correct a mistake in the notification, therefore, would relate back to the date of issuance of the original notification.

25.

In Piara Singh v. State of Punjab, the Hon'ble Supreme Court held that there is no bar on issuing the corrigendum or “more corrigenda” for correcting the arithmetical error.

***

27.

In view of the above, the legal position can be summarised that a corrigendum can be issued only to correct a typographical error or omission therein. However, it is meant only to correct typographical/arithmetical mistake. It cannot have the effect of law nor it can take away the vested right of a person nor it can have the effect of nullifying the rights of persons conferred by the law.”

173.

We find that in the facts of the present case, the errata notification is 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 yd of land notified as wakf property in the year 1989, large area of 1654 acres 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 Section 32(2)(n) read with Section 40 or on the basis of survey report which was called by the State Government by appointing a Survey Commissioner.

174.

It may be noticed at this stage that the second survey report as called by the Wakf Board from the Survey Commissioner has many interpolations visible to the naked eye which creates a doubt on the correctness of the report which could form as a reasonable base to confer jurisdiction on the Wakf Board to include such land as a wakf land.

25.

Under Muslim law, a wakf can be created in several ways but primarily by permanent dedication of any movable and immovable property by a person professing Islam for any purpose recognised by Muslim law as pious, religious or charitable purpose and in the absence of such dedication, it can be presumed to have come into existence by long use.

26.

Ordinarily, a wakf is brought into existence by any express dedication of movable or immovable property for religious or charitable purpose as recognised by Muslim Law. Once such a dedication is made, the property sought to be dedicated gets divested from the wakif i.e. the person creating or dedicating it and vests in the Almighty Allah. The wakf so created acquires a permanent nature and cannot be revoked or rescinded subsequently. The property of the wakf is unalienable and cannot be sold or transferred for private purpose.

27.

The dedication resulting in the creation of a wakf may at times in the absence of any express dedication may also be reasonably inferred from the facts and circumstances of the case such as long usage of the property as a wakf property provided it has been put to use for religious or public charitable purposes. In this regard, reference may be had to the Constitution Bench decision of this Court in M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1] .

28.

In the case at hand, there is no iota of evidence from the very inception as to any express dedication of the suit land for any pious, religious or charitable purpose by anyone professing Islam. Therefore, on the admitted facts, the wakf by dedication of the suit land is ruled out.

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 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 29-4-1959 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 pressed the said notification into service up till 1999.

33.

In T.N. Wakf Board v. Hathija Ammal [T.N. Wakf Board v. Hathija Ammal, (2001) 8 SCC 528 : AIR 2002 SC 402] , it was observed that the Wakf Board should follow the procedure as required under Sections 4, 5 and 6 or Section 27 of the Wakf Act before notifying the wakfs under Section 5 of the Act.

34.

In Madanuri Sri Rama Chandra Murthy v. Syed Jalal [Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602] , it was observed as under : (SCC p. 185, para 16)

“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 the 1995 Act (it was by the Board under the 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 the Government for notifying the same in the Gazette.”

35.

It may be noted that Wakf Board is a statutory authority under the Wakf Act. Therefore, the Official Gazette is bound to carry any notification at the instance of the Wakf Board but nonetheless, the State Government is not bound by such a publication of the notification published in the Official Gazette merely for the reason that it has been so published. In State of A.P. v. A.P. Wakf Board [State of A.P. v. A.P. Wakf Board, (2022) 20 SCC 383 : 2022 SCC OnLine SC 159] ,this Court consisting of one of us (V. Ramasubramanian, J. as a Member) held that the publication of a notification in the Official Gazette has a presumption of knowledge to the general public just like an advertisement published in the newspaper but such a notification published at the instance of the Wakf Board in the State Gazette is not binding upon the State Government. It means that the notification, if any, published in the Official Gazette at the behest of the Wakf Act giving the lists of the wakfs is not a conclusive proof that a particular property is a wakf property especially, when no procedure as prescribed under Section 4 of the Wakf Act has been followed in issuing the same.

11.

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

15.

The overall view of the aforementioned provisions contained in the Wakf Act, 1954 and the Wakf Act, 1995 make it evident that even under the 1954 Act, as in the 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 the 1995 Act, the Wakf Board after examining the report forwards it back to the 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 waqaf properties while updating the revenue records under sub-section (3) of Section 5 of the 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 the 1995 Act (it was by the Board under the 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 the Government for notifying the same in the Gazette. Since the list is prepared and published in the Official Gazette by following the 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 the 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, the 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 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 28-6-1962 after the lapse of about 50 years i.e. in the year 2013 by filing the present suit.

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 the 1954 Act and Section 40 of the 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.

28.

An overview of the statutory provisions relating to the publication of the list of Wakfs would be required to answer this question.

29.

Chapter-II of the Act provides for survey of wakfs. S. 4 of the Act contemplates that the State is to appoint a Commissioner for making a survey of wakf properties existing in the State and the Commissioner is required, after making such enquiry, (as he may consider necessary) to submit a report in respect of wakf properties which are existing as on the date of commencement of the Act. The report is required to contain the specified particulars.

30.

Rule 3 of the Karnataka Wakf Rules, 1964 (for brevity, hereinafter referred to as “the Rules”) contemplates that the Commissioner apart from other details is also required to furnish the description of the immovable properties showing the village or town where the properties situate along with municipal or survey number, area, description of the tenure and the estimated value of the properties.

31.

The Commissioner is thereafter required to submit a report to the Government and the Government under S. 5 of the Act is required to forward a copy of the same to the Board and the Board is required to examine the report and publish, in the Official Gazette, a list of wakfs existing in the State containing such particulars as may be prescribed.

32.

Rule 4 of the Rules mandates that apart from other particulars, the details of the wakf properties including the area, boundaries and value are required to be 15 mentioned in the list of wakfs to be published under S. 5(2) of the Act.

33.

Thus, the law contemplates that after a preliminary survey is conducted, the list of wakfs is required to be published in the gazette and this list is required to contain the details of the properties of the Wakf. This is obviously to declare and notify the wakfs that existed in the State and to also notify the properties which the wakfs owned or possessed.

34.

S. 6 of the Act provides for raising a dispute regarding wakfs, if any question arises as to whether a particular property specified as wakf property in the list of wakfs published under S. 5(2) of the Act, is a wakf property or not or whether the wakf specified as Shia wakf or Sunni wakf. This dispute could be raised by the Board or Mutawali of the wakf or any person interested therein by instituting a suit in the Civil Court. A limitation of one year to institute a suit was also stipulated as per the proviso.

35.

Thus, the question as to whether a property specified as a wakf property in the list of wakfs, was or was not a wakf property, was to be determined in a suit instituted for that purpose, either by the Board or any other person interested. If no suit was instituted, as provided under S. 6 of the Act, it is obvious that the list of wakfs published under S. 5(2) of the Act became final and as a consequence, the properties mentioned therein would have to be considered as wakf properties absolutely.

36.

In this case, it is not in dispute that house bearing No. 265 measuring 18′ × 20′ was mentioned as property of the wakf of Dargah Hazrath Noor Ali Shah Makan, Sunni, Benki Nawab Road, Mysore City. This property, specified as wakf property with all its necessary particulars as provided under the Rules, was not challenged under S. 6 of the Act.

37.

Since this publication of the list of wakfs and its properties in the gazette was not disputed by institution of a suit by anyone interested in the wakf and also by the Board, it would not be open to any person, including the Board to contend that the property mentioned in the list of wakfs was either incorrect or did not reflect the actual measurement.

38.

To put it differently, the measurement of the property specified in the list of wakfs published under S. 5(2) of the Act became final and absolute not only insofar as the Board but also in respect of any other person who was interested in the wakf.

39.

It is also not in dispute that in this particular case that an order had been passed to take over the management of the wakf and this was challenged by the petitioners in WP No. 37849/1992 and the order directing management to be taken over was also quashed.

40.

It is also not in dispute that an order dated 29-1-2003 appointing the Three Member Official Committee and the Circular dated 2-5-2003 issued by the Committee directing the tenants to pay rents were the subject matters of WP No. 26509/2003, which was dismissed reserving liberty to the petitioners to approach the Tribunal and the Tribunal rejected the said challenge made by the petitioners, which had resulted in filing of WP No. 3065/2010 by the petitioners.

41.

It is also not in dispute that this Court set aside the finding of the Tribunal regarding ‘A’ schedule property being the ancestral property and the ‘B’ schedule property i.e., the area stated in the list of wakf published in the gazette under S. 5(2) of the Act and reserved liberty to the petitioners to approach the appropriate authority for securing a declaration of title.

42.

Thus, in essence, the question as to whether the petitioners own the property, other than the property bearing house No. 265 measuring 18′ × 20′, was left open to be adjudicated in the event the petitioners or the Board initiated appropriate proceedings in that regard.

43.

It is at this stage that the proceedings have been initiated by the Board for correcting the measurements specified in the Gazette on 1-4-1965.

44.

This is clear from the communication dated 25-11-2010, which is produced along with the statement of objections by the Wakf Board, which reads as follows:

"Adverting to above, I am to state that Hazrath Noor Ali Sha Makan, Benki Nawab Street, Mysore, is a Notified under Sl. No. 24 of Government Gazette bearing No. MWB/19(2)/1965, dated 1-4-1965. In the said Gazette the measurement is mentioned as only 18' x 20' whereas the entire area of the Dargah measures towards East-38', towards West — 70', towards North — 58' and towards South-68' and as per the measurement the schedule of the property is, towards East by Private Property, towards West by Benki Nawab Street, towards North by Noor Ali Shah Makan Street, towards South by Private Property. So, the entries have to be corrected as above. Hence, I am enclosing herewith the Xerox copy of Encumbrance Certificate issued by the Sub-Registrar, Mysore 20 (South), Mysore, is enclosed herein and it is requested kindly to correct the entries as above."

45.

As could be seen from the said communication, it was the Secretary of Dargah Hazrath Noor Ali Shah Makan, who requested the Board that the property measurement shown in the list of wakf published in the gazette under S. 5(2) of the Act was not 18' x 20', but was a larger extent and therefore, the same was required to be corrected.

46.

The Board has also produced a mahazar drawn up by the Revenue Inspector as Annexure-R1. The relevant portion of the said mahazar reads as follows:

"ಮೈಸೂರು ಸಿಟಿ ಮಂಡಿ ಮೊಹಲ್ಲಾ ನೂರ್ ಅಲಿ ಮಖಾನ್ ದರ್ಗ ವಿಚಾರದಲ್ಲಿ ಇದಕ್ಕೆ ಸೇರಿದ ಆಸ್ತಿ ಪಾಸ್ತಿಗಳನ್ನು ತನಿಖೆ ನಡೆಸಿದಾಗ ನಾವು ಹಾಜರಿದ್ದೆವು. ಸದರಿ ದರ್ಗದ ಆಡಳಿತ ವನ್ನು ಜನಾಬ್ ಮಹಮ್ಮದ್ ಅಬ್ದುಲ್ಲಾ ಪರೀಫರು ನಡೆಸಿಕೊಂಡು ಬರುತ್ತಿರುತ್ತಾರೆ. ಈ ದರ್ಗಕ್ಕೆ ಪೂರ್ವ ಭಾಗಕ್ಕೆ ಸೇರಿದಂತೆ ನಾಡು ಹೆಂಚಿನ ಮಳಿಗೆ 20 X 18 ಡೋರ್ ನಂ.265 ಉಳ್ಳದ್ದಾಗಿರುತ್ತೆ ಇದರ ಮಾಹೆಯಾನ ಬಾಡಿಗೆ 60/- ರೂ.ಗಳು ಸಾಲಿಯಾದ ಒಟ್ಟು ಉತ್ಪತ್ತಿ 720/- ರೂಪಾಯಿಗಳು ಬೆಲೆ 10,000/- ರೂಪಾಯಿಗಳು ಇದರ ಮುನಿಸಿಪಲ್ ಕಂದಾಯ ವರ್ಷಕ್ಕೆ 52/- ರೂ. ಗಳು ಇರುತ್ತೆ. ಅಂತ್ಯ ಈ ದರ್ಗದ ಸಾಲಿಯಾನ ವರಮಾನ 720/-ರೂಪಾಯಿಗಳು ಕಂದಾಯ 52/- ರೂ.ಗಳು ಸಾಲಿಯಾನ ರಿಪೇರಿಗೋಸ್ಕರ ಖರ್ಚು 100/- ರೂಪಾಯಿಗಳು ಇದರ ಇತರ ವಗೈರೆ ಖರ್ಚು 250/-ರೂಪಾಯಿಗಳು ಅದಲ್ಲದೆ ಉರಿನಲ್ಲಿರುವ ಬಡಜನರಿಗೆ ಅನ್ನ ಹಾಕಿಸುವ ಖರ್ಚು 100/-ಅಂತ ಒಟ್ಟು ಆದಾಯದಲ್ಲಿ 450/- ರೂಪಾಯಿಗಳು ಖರ್ಚಾಗುತ್ತೆ ಮತ್ತು ಉಳಿಕೆ ಮೊಬಲಗು 218/- ರೂ. ಗಳು ಸಾಲಿಯಾನ ಉಳಿಯುತ್ತದೆ."

47.

As could be seen from this mahazar also, the Revenue Inspector, in the year 1945, stated that to the east of Dargah, there was a country tiled roof shop measuring 18' x 20'. The mahazar does not indicate a larger extent of property being attached to the Dargah or belonging to the Dargah. It is, therefore, clear that by the communication dated 25-11-2010, an attempt was being made to enlarge the extent of the property bearing No. 265 contrary to the mahazar of the year 1945.

48.

As stated earlier, the property specified as wakf property in the list of wakf published under S. 5(2) of the Act was amenable to a challenge by institution of a suit, provided the same had been instituted within a period of one year. If the list of wakfs, published in the gazette, had not been challenged and which resulted in a finality being attached to the list of wakfs and its properties, it would not be permissible for the Board to alter the extent of the properties of a wakf, at a later stage. If this is permitted, it would basically permit the Board to nullify the finality attached to the publication of the list of wakfs, and which is not provided under the Act.

49.

Learned Senior Counsel, however, sought to place reliance on S. 21 of the General Clauses Act and S. 28 of the Act.

50.

S. 21 of the General Clauses Act confers powers on the authority which issues a notification to modify, vary or rescind the said notification. It is to be stated here that the power available under S. 21 of the General Clauses Act is in respect of a notification which is issued in exercise of a statutory power. This power would not be available in respect of publication of a list of wakfs in the gazette. The power to issue a notification under a statutory provision is completely different from the obligation of the authority to cause the publication of list of wakf in the gazette after completion of a preliminary survey.

51.

It is to be stated here that the list of wakfs has to be published after preliminary survey is conducted and a report is submitted to the Government. The Board, in fact, has to thereafter examine the report and publish the list of wakfs in the Gazette.

52.

The Board, on publication of the list of wakfs in the gazette has not been conferred with the power to modify the list. The Board did possess the right to raise a dispute as provided under S. 6 of the Act within a period of one year. Once the Board chose not to challenge the list of wakfs published, it would not be permissible for the Board to make any attempt to alter the list of wakfs.

53.

S. 21 of the General Clauses Act states that if a Central Act confers a power to issue a notification, that power would include the power to be exercisable to add or amend or vary or rescind the notifications, subject to the same terms and conditions for issuance of the notification.

54.

A plain reading of this section would indicate that S. 21 of the General Clauses Act would come into operation only in respect of a power conferred under an Act to issue a notification. A notification issued under an Act is an exercise of statutory power and cannot be relatable to an obligation cast upon the authority to cause the publication of an order of a list.

55.

The argument of the learned Senior Counsel in this regard is, therefore, without any merit.

56.

As far as the argument that the Board has the right to amend the register of wakfs under S. 28 of the Act is concerned, it is to be noticed here that Chapter-IV of the Act provides for registration of wakf and it provides for the manner in which the registration is required to be done. The maintenance of register of wakf would have no bearing on the list of wakfs published in the gazette and the Register is basically to reflect the particulars of the properties as indicated in the list of wakfs published under S. 5(2) of the Act. The Board, which has been conferred with the power to direct Mutawali to apply for registration of wakf or cause the registration of wakf, cannot utilize this power to amend the list of wakfs published in the gazette under S. 5(2) of the Act. The power to amend the register of wakfs is wholly different from the power to amend the list of wakfs published under S. 5 (2) of the Act.

57.

As noticed above, the list of wakfs published under S. 5(2) of the Act can only be disturbed by the decree of a competent Civil Court, provided the suit is instituted within a period of one year. Once the period of one year elapses, the list of wakfs published in the gazette which also indicates the properties of the wakfs becomes unalterable. Therefore, the argument with regard to S. 28 of the Act conferring power on the Board to amend the list of wakfs by issue of a corrigendum to the notification published in the gazette under S. 5(2) of the Act is without any substance.

58.

It may also be pertinent to state here that the Black's Law Dictionary has defined ‘corrigendum’ as “an error in a printed work discovered after the work has gone to the press”. Thus, a corrigendum is issued only to correct an error in the printed text and this cannot be utilized to effect an amendment which has the effect of adding something totally new.

60.

It is to be stated here that the question as to whether a property was a wakf property or not in the list of wakf published in the gazette under S. 5(2) of the Act is amenable to the jurisdiction of the Civil Court under S. 6(2) of the Act. However, the legality or the validity of a corrigendum which was issued nearly 46 years after the publication of the list of wakfs in the gazette cannot be considered by the Tribunal. The Tribunal has not been conferred with the power to strike down a notification or a corrigendum. The petitioners are questioning the jurisdiction of the Wakf Board in issuing a corrigendum and therefore, it is this Court which has possessed the jurisdiction to test the validity of corrigendum.

10.

In our opinion, all matters pertaining to wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the civil court or by the High Court straightaway under Article 226 of the Constitution of India.

11.

It may be mentioned that the Wakf Act, 1995 is a recent parliamentary statute which has constituted a Special Tribunal for deciding disputes relating to wakfs. The obvious purpose of constituting such a Tribunal was that a lot of cases relating to wakfs were being filed in the courts in India and they were occupying a lot of time of all the courts in the country which resulted in increase in pendency of cases in the courts. Hence, a Special Tribunal has been constituted for deciding such matters.

12.

Section 83(1) of the Wakf Act, 1995 states:

“83.

Constitution of tribunals, etc.—(1) The State Government shall, by notification in the Official Gazette, constitute as many tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.”

13.

Section 84 of the Act states:

“84. Tribunal to hold proceedings expeditiously and to furnish to the parties copies of its decision.—

Whenever an application is made to a tribunal for the determination of any dispute, question or other matter relating to a wakf or wakf property it shall hold its proceedings as expeditiously as possible and shall as soon as practicable, on the conclusion of the hearing of such matter give its decision in writing and furnish a copy of such decision to each of the parties to the dispute.”

14.

Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a wakf or wakf property. The words “any dispute, question or other matters relating to a wakf or wakf property” are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a wakf or wakf property can be decided by the Wakf Tribunal. The word “wakf” has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.

25.

For the reasons mentioned above, the impugned judgment of the Calcutta High Court cannot be sustained and it is hereby set aside. We hold that only the Wakf Tribunal has jurisdiction in the matter and the parties can approach the Wakf Tribunal, if so advised. The appeal stands allowed. There shall be no order as to costs.

4.

The learned Counsel appearing for the Wakf Board would however point out that it is not as if the property was not notified in the year 1965. It was indeed shown as ‘darga’, but without proper boundaries being indicated. It is this which has been supplied by the Corrigendum. There is no attempt to play mischief as sought to be unfairly alleged by the learned counsel for the petitioners.

14.

Admittedly, no one challenged the genuineness of the Notification whereby the suit property was declared as Wakf property at any stage of the proceeding. In the absence of such challenge, the Court shall have to draw presumption with regard to the genuineness of the Notification, as provided under Section 81 of the Evidence Act. Moreover, neither the first Appellate Court nor the High Court has considered and noticed the provisions of Section 5 of the Wakf Act, 1995 (Section 5 of the Old Wakf Act, 1954).

31.

A bare reading of Sections 6 and 7 extracted above, shows that the language employed therein appears to have deflected the attention of many a court without exception. The reason why we say so, is this. A careful look at the scheme of the Act would show that the Act is divided into 9 chapters. Chapter II which contains Sections 4 to 8, is primarily concerned with the survey of waqfs 4. Sections 6 and 7 are incidental to the scheme of Chapter II alone, which is why they speak only about two questions namely, (i) whether a particular property specified as a waqf property in the list of waqfs is actually a waqf property or not; and (ii) whether a waqf specified in such list is a Shia waqf or Sunni waqf. While Section 4 contemplates a preliminary survey of all waqfs in the State, Section 5(2) speaks about publication of the list of waqfs (separately for Shia and Sunni) in the official gazette. Since Sections 6 and 7 follow Sections 4 and 5, they refer only to the aforesaid two questions. In other words, the questions relevant for the purposes of Sections 4 and 5 alone, are dealt with in Sections 6 and 7 and hence the discussion regarding the jurisdiction of the Waqf Tribunal should not start and end with Sections 6 and 7.

32.

Sections 83 and 85, as well as Sections 86, 90 and 93, which use the word “court”, are to be found in Chapter VIII of the Act. The heading given to Chapter VIII is “Judicial Proceedings”. Therefore, for finding an answer to the question relating to the bar of jurisdiction under Section 85, it is not enough merely to refer to Section 6(5) or Section 7(2). The language of Section 85 is clearly in contrast to the language employed in Section 6(5) and Section 7(2).

53.

It is well settled that the court cannot do violence to the express language of the statute. Section 83(1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter (i) relating to a waqf; and (ii) relating to a waqf property. Therefore to say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1).

54.

In fact, Section 83(5) of the Act makes it clear that the Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the CPC, while trying a suit or executing a decree or order. This is why this Court held in Syed Mohideen and Another vs. Ramanathapura Peria Mogallam Jamath and Others5 that the Waqf Tribunal will have power to issue temporary injunctions under Order XXXIX, Rule 1 CPC.

“When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition...” (Paragraph 132)

“In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”. (Paragraph 133)

“It is not a case where any oral evidence would be necessary or is available now.” (Paragraph 136).

14. Answer to Point No. (ii): Whether, in view of Sections 83 and 85 of the Wakf Act, 1995, the

15. Answer to Point No. (iii): Whether, in the facts and circumstances of the case, the writ petition

16. Answer to Point No. (iv): What Order?

ORDER