Wakf Board Can Declare A Property As Wakf Only After Conducting Inquiry Under Section 40 Wakf Act: Supreme Court

The Supreme Court observed that the Wakf Board can determine the nature of the property as wakf only after conducting inquiry as prescribed under Section 40 of the Wakf Act.

The conduct of inquiry pre-supposes compliance of the principles of natural justice so as to give opportunity of hearing to the affected parties, the bench comprising Justices Hemant Gupta and V. Ramasubramanian said.

The court allowed an appeal filed by the State challenging the action of Wakf Board and measuring 1654 acres and 32 guntas as wakf property and held that the said land vest with the state and/or Corporation free from any encumbrance.

One of the issues that was considered was whether the power to investigate and determine the nature of property is an administrative function or is it a quasi-judicial function as an inquiry is required to be conducted before any property is declared to be Wakf property?

At the outset, the court noted that the Board is competent to collect information regarding any property which it has reason to believe to be Wakf property and if any question arises as to whether a particular property is a Wakf property or not, or whether a wakf is a sunni wakf or a shia wakf, it may, after making such inquiry as it may deem fit, decide the question.

Referring to the provisions of the Act, the court found that the power of the Board to investigate and determine the nature and extent of Wakf is not purely an administrative function. The bench observed thus: 

"145... Such power has to be read along with Section 40 of the Act which enjoins "a Wakf Board to collect information regarding any property which it has reason to believe to be wakf property and to decide the question about the nature of the property after making such inquiry as it may deem fit." The power to determine under Section 32(2)(n) is the source of power but the manner of exercising that power is contemplated under Section 40 of the 1995 Act. An inquiry is required to be conducted if a Board on the basis of information collected finds that the property in question is a wakf property. An order passed thereon is subject to appeal before the Wakf Tribunal, after an inquiry required is conducted in terms of subsection (1) of Section 40. Therefore, there cannot be any unilateral decision without recording any reason that how and why the property is included as a wakf property. The finding of the Wakf Board is final, subject to the right of appeal under sub-section (2). Thus, any decision of the Board is required to be as a reasoned order which could be tested in appeal before the Wakf Tribunal."

"146...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 120 Section 40. Such procedure categorically prescribes an inquiry to be conducted. The conduct of inquiry pre-supposes compliance of the principles of natural justice so as to give opportunity of hearing to the affected parties. "

The court noted that the proceedings produced by the Wakf Board do not show any inquiry conducted or any notice issued to either of the affected parties.

"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.", the court added.