'Land Dedicated For Religious Purpose Not Immune From Its Vesting With State': Supreme Court Quashes AP Wakf Board Notification Declaring 1654 Acres Land As Wakf Property

Land dedicated for pious and religious purpose is not immune from its vesting with the State, the Supreme Court observed while setting aside the action of the Andhra Pradesh Wakf Board that declared land measuring 1654 acres and 32 guntas as wakf property.

The bench comprising Justices Hemant Gupta and V. Ramasubramanian held that the said land vest with the state and/or Telangana Infrastructure Development Corporation Corporation free from any encumbrance. It added that 90% of the gross basic sum referred to in Section 4 of the Commutation Regulation is payable to the Dargah within 6 months.

In this case, an errata notification was issued in the year 2006 on behalf of Waqf board declaring 1654 acres and 32 guntas as wakf property. This notification was challenged by the then State of Andhra Pradesh, now State of Telangana and the Andhra Pradesh (now Telangana) Infrastructure Development Corporation by filing Writ Petition before the High Court. Several other writ petitions were also filed in this regard. The High Court dismissed the writ petition. 

In appeal before the Apex Court, the following issues were considered: 

(1) Whether the High Court was justified in relegating the parties to the remedy before the Wakf Tribunal?

(2) Whether the Government was entitled to dispute the validity of errata notification before the Writ Court under Article 226 of the Constitution?

(3) Whether the State is estopped to challenge the notification inter-alia on the ground that Government Pleader was present before the Nazim Atiyat and before the High Court in proceedings against the order passed by Nazim Atiyat and that the notification was published in State Government Gazette?

(4) Whether the notification published at the instance of Wakf Board is in exercise of power conferred under Section 32 read with Section 40 of the 1995 Act?

(5) Whether the second survey report and/or the order of the Atiyat Court could be said to be sufficient material with the Wakf Board to publish the impugned Errata notification in exercise of powers vested in Section 5 of the 1995 Act?

Regarding the first issue, the bench observed that the High Court erred in law, in the facts and circumstances of the case, to relegate the parties to the statutory remedy. Since the question was in respect of interpretation of the statutes and the documents primarily issued by the Sovereign, the matter needs to be examined on merits as detailed arguments have been addressed by learned counsel for the parties, the court said. The court also held that the State Government, as a juristic entity, has a right to protect its property through the writ court, just as any individual could have invoked the jurisdiction of the High Court. Therefore, the State Government is competent to invoke the writ jurisdiction against the action of the Wakf Board to declare the land measuring 1654 acres and 32 guntas as wakf property, it said.

On the question of estoppel, the bench held thus: The Wakf Board is a statutory authority under the 1954 Act as well as under the 1995 Act. Thus, the Official Gazette had to carry any notification at the instance of the Wakf Board. Therefore, the State Government is not bound by the publication of the notification in the Official Gazette at the instance of the Wakf Board only for the reason that it has been 110 published in the Official Gazette. The publication of a notice in an Official Gazette has a presumption of knowledge to the general public as an advertisement published in a newspaper. Therefore, mere reason that the notification was published in the State Government gazette is not binding on the State Government.

On the fourth issue, the court found that 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.  Answering the fifth issue against the Wakf Board, the court held that the jurisdiction of the Nazim Atiyat was restricted only to the commutation amount payable, the finding regarding Mashrut-ul-Khidmat land or a Madad Maash land is beyond the scope of the authority of a Nazim Atiyat on the date when the order was passed.

One of the contentions raised in this case was that the land which is dedicated for pious and religious purposes would continue to be wakf in view of the principle that once a wakf is always a wakf. According to the board, as per the Nazim Atiyat order, land of jagir village Manikonda was found to be Mashrut-ul-Khidmat land i.e. income from the land was to be used for the service of Dargah that is for pious and religious purposes. The said purpose would be considered as wakf under the Muslim law even before 1961, it was contended.

To answer this contention, the court referred to Khajamian Wakf Estates v. State of Madras, (1970) 3 SCC 894, in which the court examined the contention that by acquiring the properties belonging to religious denominations, the Legislature violated Article 26(c) and (d) which provide that religious denominations shall have the right to own and acquire movable and immovable property and administer such property in accordance with law.  "These provisions do not take away the right of the State to acquire property belonging to religious denominations. Those denominations can own, acquire properties and administer them in accordance with law. That does not mean that the property owned by them cannot be acquired. As a result of acquisition they cease to own that property. Thereafter their right to administer that property ceases because it is no longer their property. Article 26 does not interfere with the right of the State to acquire property.", it was observed. 

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