The 'Survey'cal Strike (Introspection Into Section 4(1A) The Wakf Act 1995)

Statutory provisions contained in the 1954 and 1995 Wakf Acts provided for a survey of all Wakf properties. The Statement of Object & Reasons of an Amending Act [Amendment 27 of 2013] specifically indicated inadequacy of data of Wakf properties. This was only due to the omission in Section 4(1) of the 1995 Act, wherein there was no time limit fixed for completing such a survey. Subsequently, the encroachments on Wakf properties continued unabated as did the unnecessary litigations.

Insertion of Section 4(1A) by way of the aforesaid Amending Act, was therefore with a specific purpose viz. to complete the survey within a period of 1 year. Unfortunately, the Amendment remains almost a dead letter in the Statute Books till date.

The cascading effect of such lack of survey (or more appropriately, a proper survey in terms of Section 4(3) of the Wakf Act) are tremendous viz. multiplicity of proceedings, properties not developed, beneficiaries denied benefits and encroachments etc. All this adds to further burdening of the Court.

The responsibility of the Survey is primarily of the respective States. Survey Commissioners are clothed with such powers as are vested in a Civil Court under the CPC {as per Section 4(4) of the Wakf Act}. The report of the Survey Commissioner, after survey, is to be examined by the Wakf Boards to ensure a validation. Only subsequent thereto is a publication to be made in the Official Gazette.

Gazettes are official records, evidencing public affairs and under Section 81 of the Evidence Act, its genuineness is presumed^[1]. Entries made therein are relevant facts under Section 35 of the Evidence Act.

There has been no Gazette Publication after enactment of the Wakf Act 1995 i.e., for the last 25 years and the respective States and Wakf Boards have failed to comply with the aforesaid statutory requirements. It is pertinent to note that Survey Commissioners and the Members/Officers of Wakf Boards are deemed to be public servants, as per Section 101 of the Wakf Act 1995 and therefore can be punished as such.

Wakf Boards across the country have had errant officials who have contributed precious little to the cause. The Hon'ble Supreme Court of India in a recent judgment in State of Andhra Pradesh vs. A.P. State Wakf Board & Ors.^[2] highlighted the lackadaisical functioning of respective Wakf Boards and found:-

• A Survey Commission was appointed in 1961 and who submitted his report in 1971 (after 10 years).
• On basis of this 1971 report, a notification was published (18 years later) in 1989 where 5506 sq. yards was found Wakf land in a particular Wakf.
• 16 years thereafter (on 30.01.2005) the Mutawalli requested for protection of 1654 Acres, as it had "not been notified in the Gazette".
• In 2001 a notification required a Second Survey.
• Wakf Board found that the Second Survey report did not contain the Survey nos. & of the attached properties of the subject institution, hence directing publication of an "ERRATA NOTIFICATION".

At para 152, the Hon'ble Court frowned upon the bonafides of the Mutawalli and his inaction for 17 years (1989 – 2005). At para 154 it was held that, as against 5506 square yards notified in the year 1989, a large area of 1654 Acres could not be included under the guise of an errata notification.

Similarly, in a recent case before the Hon'ble High Court at Patna^[3] wherein the Wakf Board constructed a new multi-storey office for itself adjacent to the High Court, flouting building Rules. A Full Bench of the High Court directed demolition of the same and the issue is now pending consideration before the Apex Court^[4]. It appears from this judgment that such building has been constructed on land which was dedicated to be a graveyard and Rs.14 Crores were spent on construction.

The apathetic attitude of the respective State Governments to not to complete the Survey as envisaged under Section 4(1A) of the Wakf Act and to follow the procedure prescribed under Section 4(3) of the said Act makes all persons liable for prosecution dereliction of duty being public servants. The same however shall not help the cause viz. protection and preservation of Wakf properties. The noble intention of the donors/Wakifs have not been honored and their cherished desires to contribute for religious and charitable purposes grounded. The statute provides an excellent trajectory to achieve such an end but the procedural delay, despite insertion of Section 4(1A), is a direct cause for the Survey, as contemplated, to remain incomplete.

Courts of law have always jealously protected properties belonging to religious and charitable institutions. Private negotiations, necessity of public notice/advertisement, sanctioning of development plans are requirements which Hon'ble Judges consider mandatory and relevant particularly where transactions of such properties appear dubious or an eyewash. Such transactions which shock the conscience of Courts fall within the prism of judicial scrutiny^[5].

Unfortunately, despite the clear legislative intent the Survey as contemplated has still not been completed and Wakf properties are continuously being frittered away causing wrongful loss to the Wakf Estates/ beneficiaries while the donors/Wakifs ruefully turn in their graves.

NOTE: The author has filed a Writ Petition in public interest [W.P 1430/2019] wherein he has prayed for surveys to be completed within a specified time frame. The Hon'ble Supreme Court has issued notice and directed compliance by filing of affidavits.

The author is a practicing Advocate at the Hon'ble Supreme Court . Views are personal.