# MADANURI SRI RAMA CHANDRA MURTHY v. SYEDJALAL

- **Citation:** [2017] 5 S.C.R. 294
- **Court:** Supreme Court of India
- **Decided:** 2017-04-19
- **Case number:** Civil Appeal No. 5368of2017
- **Bench:** R. K. Agrawal, Mohan M. Shantanagoudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/madanuri-sri-rama-chandra-murthy-v-syedjalal-32259
- **Pages:** 20

## Headnote

Code of Civil Procedure, 1908:
Or. VII, r.11 - Rejection of plaint - Held: The power u/Or. VII,
r.11 can be exercised by the Court at any stage of the suit - The
relevant facts which need to be looked into for deciding the
application are the averments of the plaint only - If on an entire
and meaningful reading of the plaint, it is found that the suit is
manifestly vexatious and merit/ess in the sense of not disclosing
any right to sue, the court should exercise power u/Or. VII r.11 -
The said power however have to be strictly adhered to -. The
averments of the plaint have to be read as a whole to find out whether
the averments disclose a cause of action or whether the suit is barred
by any law.
Or. VII, r.11 -Averments in the written statement as well as the
contentions of the defendant are wholly immaterial while considering
the prayer of the defendant for rejection of the plaint - Even when,
the a/legations made in the plaint are taken to be correct as a whole
on their face value, if they show that the suit is barred by any law,
or do not disclose cause of action, the application for rejection of
plaint can be entertained and the power u/Or. VII, r.11 can be
exercised - If clever drafting of the plaint has created the illusion
of a cause of action, the court will nip it in the bud at the earliest so
that bogus litigation end at the earlier stage.
Or. VIL r.11 - Suit for cancellation of sale deed on the ground
that the suit property was wakf property and that defendants having
purchased through a private person, sale deed did not convey any
294
MADANURI SRI RAMA CHANDRA MURTHY v. SYED JALAL
295
right, title or interest in favour of defendants - Application by
A
defendants including appellant u!Or. 7, r.11 for rejection of plaint -
Wakf Tribunal allowed the application - High Court set aside the
order of Wakf Board - On appeal, held: The Tribunal held that
property in question was not notified in Official Gazette as a Wakf
property, as alleged by the plaintiff - High Court though agreed
with the finding of fact arrived at by the Tribunal that the property
was not notified as Wakf property in the Official Gazette, raised
some doubt about the non-inclusion/inclusion of the property in the
Survey Commissioners Report and proceeded to set aside the order
B
of the Tribunal - Therefore, there were concurrent findings of fact
that property in question was not notified in Official Gazette as a
Wakf property - Under s. 6, anyone aggrieved by such non-inclusion
of the property in the list notified should raise the dispute within a
period of one year from the date of publication of the Gazette
notification - The plaintiff questioned the non-inclusion of the
property in the list and the validity of the list notified in the official
gazette dated 28.06.1962 after the lapse of about 50 years by filing
the instant suit - Moreover, as per s.27 of 1954 Act (s.40 of 1995
Act), the Board may itself collect information regarding any property
which it has reason to believe to be walif property and if any question
arises whether a particular property is wakf property or not the
Board after making such enquiry as it deems fit, decide the question
- The Board did not exercise jurisdiction u/s.27 of 1954 Act and
s.40 of 1995 Act, though 50 years elapsed from the date of the
gazette notification - The suit is manifestly meritless and vexatious
- So also the suit is barred by law - Wakf Tribunal was right in
allowing application u/Or.VII, r.11 - Wakf Act, 1954 - ss.6 and 27
Wakf Act, 1995 - ss.6 and 40.
Wakf - Similarity and difference between the 1954 Act and
1995 Act - Held: The provisions found in ss. 5 and 6 of Walif Act
1995 and Act of 1954 are almost akin to each other - Howeve1; the
change brought in by the Parliament under 1995 Act is that, in the
case of dispute regarding Wakfs, the aggrieved party needs to
approach the Wakf Tribunal constituted uls.83 of the Walif Act 1995
and consequently the jurisdiction of the Civil Court is taken away
-

## Text

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[2017] 5 S.C. R. 294
MADANURI SRI RAMA CHANDRA MURTHY
v.
SYEDJALAL
(Civil Appeal No. 5368of2017)
APRIL 19, 2017
[R. K. AGRAWAL AND
MOHAN M. SHANTANAGOUDAR, JJ.]
Code of Civil Procedure, 1908:
Or. VII, r.11 - Rejection of plaint - Held: The power u/Or. VII,
r.11 can be exercised by the Court at any stage of the suit - The
relevant facts which need to be looked into for deciding the
application are the averments of the plaint only - If on an entire
and meaningful reading of the plaint, it is found that the suit is
manifestly vexatious and merit/ess in the sense of not disclosing
any right to sue, the court should exercise power u/Or. VII r.11 -
The said power however have to be strictly adhered to -. The
averments of the plaint have to be read as a whole to find out whether
the averments disclose a cause of action or whether the suit is barred
by any law.
Or. VII, r.11 -Averments in the written statement as well as the
contentions of the defendant are wholly immaterial while considering
the prayer of the defendant for rejection of the plaint - Even when,
the a/legations made in the plaint are taken to be correct as a whole
on their face value, if they show that the suit is barred by any law,
or do not disclose cause of action, the application for rejection of
plaint can be entertained and the power u/Or. VII, r.11 can be
exercised - If clever drafting of the plaint has created the illusion
of a cause of action, the court will nip it in the bud at the earliest so
that bogus litigation end at the earlier stage.
Or. VIL r.11 - Suit for cancellation of sale deed on the ground
that the suit property was wakf property and that defendants having
purchased through a private person, sale deed did not convey any
294
MADANURI SRI RAMA CHANDRA MURTHY v. SYED JALAL
295
right, title or interest in favour of defendants - Application by
A
defendants including appellant u!Or. 7, r.11 for rejection of plaint -
Wakf Tribunal allowed the application - High Court set aside the
order of Wakf Board - On appeal, held: The Tribunal held that
property in question was not notified in Official Gazette as a Wakf
property, as alleged by the plaintiff - High Court though agreed
with the finding of fact arrived at by the Tribunal that the property
was not notified as Wakf property in the Official Gazette, raised
some doubt about the non-inclusion/inclusion of the property in the
Survey Commissioners Report and proceeded to set aside the order
B
of the Tribunal - Therefore, there were concurrent findings of fact
that property in question was not notified in Official Gazette as a
Wakf property - Under s. 6, anyone aggrieved by such non-inclusion
of the property in the list notified should raise the dispute within a
period of one year from the date of publication of the Gazette
notification - The plaintiff questioned the non-inclusion of the
property in the list and the validity of the list notified in the official
gazette dated 28.06.1962 after the lapse of about 50 years by filing
the instant suit - Moreover, as per s.27 of 1954 Act (s.40 of 1995
Act), the Board may itself collect information regarding any property
which it has reason to believe to be walif property and if any question
arises whether a particular property is wakf property or not the
Board after making such enquiry as it deems fit, decide the question
- The Board did not exercise jurisdiction u/s.27 of 1954 Act and
s.40 of 1995 Act, though 50 years elapsed from the date of the
gazette notification - The suit is manifestly meritless and vexatious
- So also the suit is barred by law - Wakf Tribunal was right in
allowing application u/Or.VII, r.11 - Wakf Act, 1954 - ss.6 and 27
Wakf Act, 1995 - ss.6 and 40.
Wakf - Similarity and difference between the 1954 Act and
1995 Act - Held: The provisions found in ss. 5 and 6 of Walif Act
1995 and Act of 1954 are almost akin to each other - Howeve1; the
change brought in by the Parliament under 1995 Act is that, in the
case of dispute regarding Wakfs, the aggrieved party needs to
approach the Wakf Tribunal constituted uls.83 of the Walif Act 1995
and consequently the jurisdiction of the Civil Court is taken away
- The overall view of the provisions contained in Wakf Act, 1954
and Wakf Act 1995 make it evident that even under 1954 Act, as in
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SUPREME COURT REPORTS
[20 I 7) 5 S.C.R.
1995 Act, the Survey Commissioners were appointed for the purpose
of making survey of wakfs in State - The Survey Commissioner is
duty bound to conduct the survey of wakfs in the State and after
making such enqui1y, submit his report in respect of Walifs exis_ting
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
1995 Act, the Wakf Board after examining the report forwards it
back to Government within a period of 6 months for publication in
the Official Gazette in the State - Pursuant thereto the State publish
the Gazette notification.
Allowing the appeal, the Court
HELD: 1. In order to prima facie satisfy his case as pleaded
in plaint that the Suit property is a Wakf property, the plaintiff
produced certain documents including Gazette Notification dated
28.06.1962. The averments in the plaint disclose that the property
bearing Survey No. 113 situated at Pernamitta village was notified
as Wakf property under Serial No. 966 in the Official Gazette
published by Andhra Pradesh State Wakf Board on 28.06.1962.
The property in question is situateil in Pernamitta village, whereas
the Gazette which is relied upon shows that the survey no. 113 is
situated at a different village which is stated to be far away (about
20 kms.) from village Pernamitta. List of wakf properties
pertaining to Pernamitta village does not contain the property in
question. The Tribunal, on facts, thus had concluded that property
in question does not find place in the Official Gazette of the Wakf
Board. The High Court also concurred with the WakfTribunal in
that regard. Thus, there are concurrent findings of fact that
property in question was not notified in Official Gazette as a Wakf
property, as alleged by the plaintiff/respondent. The High Court
though having agreed with the finding of fact arrived at by the
Tribunal that the property was not notified as Wakf property in
the Official Gazette, raised some doubt about the non-inclusion/
inclusion of the property in the Survey Commissioner's Report,
erroneously has proceeded to set aside the order of the Tribunal.
[Paras 9, 10] [302-C-H)
MADANURI SRI RAMA CHANDRA MURTHY v. SYED JALAL
2. Notification containing the list ofWakf properties relied
upon by the plaintiff was published in Gazette as back as on
28.06.1962 as per the provisions of Section 5 of Wakf Act, 1954
which is subsequently replaced by the Waqf Act, 1995. A bare
reading of the provisions contained in 1954 Act and 1995 Act,
makes it manifestly clear that the provisions, which are relevant
for this case are almost para materia with each other. The
provisions found in Sections 5 and 6 ofWakf Act 1995 and Act of
-1954 are almost akin to each other. However the change brought
in by the Parliament under 1995 Act is that, in the case of dispute
regarding Wakfs, the aggrieved party needs to approach the Wakf
Tribunal constituted under Section 83 of the Wakf Act 1995 and
consequently the jurisdiction of the Civil Court is taken away.
Except this change, no other substantial modification is found in
those provisions.
[Paras 11, 12 and 14) [303-A; 308-G-H; 309A, E-F)
297'
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3. The overall view of the provisions contained in Wakf D
Act, 1954 and Wakf Act 1995 make it evident that even under
1954 Act, as in 1995 Act; the Survey Commissioners were
appointed for the purpose of making survey of wakfs in State.
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 1995 Act, (it was by the Board
under 1954 Act). The list would be prepared by the Survey
Commissioner after making due enquiry and after valid survey
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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 it's mind and only thereafter the same
will be sent to Government for notifying the same in the Gazette.
Since the list is prepared and published in the official Gazette by
following 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 Wakf Board (as the case may be), prior to finalisation
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A 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 Surveyor's
report merges with the Gazette Notification published under
Section 5 of the Wakf Act. [Paras 16, 17] [310-B, E-H; 311-A]
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4. 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
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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
D dated 28.06.1962 after the lapse of about 50 years, i.e. in the
year 2013 by filing the present suit. [Para 18] (311-B-C]
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5. As per Section 27 of 1954 Act (Section 40 of 1995 Act),
the Board may itself collect information regarding any property
which it has reason to believe to be wakf property and if any
question arises whether a particular property is wakf property or
not the Board after making such enquiry as it deems fit, decide
the question. The decision of the Board on any question under
sub-section (1) of Section 27 of 1954 Act (or under Section 40(1)
of 1995 Act) shall, unless revoked or modified by the Civil Court,
be final. The effect of Section 27 of 1954 Act or Section 40 of
1995 Act is that, if any property had been omitted to be included
in the list of auqaf by inadvertence or otherwise, then it was/is
for the Wakf Board to take action, as per said provision. In the
matter on hand, the said provision also will not come to the aid of
the plaintiff inasmuch as the said sub-section can be employed
G only if survey of auqaf was not done before the commencement
of Wakf (Amendment) Act, 2013. Admittedly in the matter on
hand, the survey was conducted prior to 1962 and based on such
Surveyor's report only, the list was prepared and the same was
submitted to State Government, which in turn, was forwarded to
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MADANURI SRI RAMA CHANDRA MURTHY v. SYED JALAL
299
WakfBoard, the WakfBoard after examining the report published
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the list in the official gazette in the year 1962. Hence, sub-section
(lA) of Section 4 also will be of no avail to the plaintiff. In the
matter on hand, 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 non8
inclusion was never questioned by any person including the Wakf
Board. The Board has not exercised jurisdiction under Section
27 of 1954 Act and Section 40 of 1995 Act, though 50 years have
elapsed from the date of the gazette notification. Hence, the
averments in the plaint do not disclose the cause of action for
filing the suit. The suit is manifestly meritless and vexatious. So
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also the suit is barred by law. [Paras 19, 21 and 22] [311-D-E;
312-D-H]
T.N. Wakf Board v. Hathija Ammal 2001 (8) SCC 528:
[2001] 2 Suppl. SCR 428 - relied on.
Case Law Reference
[2001] 2 Suppl. SCR 428
relied on
Para 19
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5368
of2017.
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From the Judgment and Order dated 07.09.2016 of the High
Court of Judicature at Hyderabad for the State of Telangana & The
State of Andhra Pradesh in Civil Revision Petition No. 2472of2016 ..
G V. R. Choudary, K. Shivraj Chaudhuri, A. Chandra Sekhar,
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S. M. Subhani, Advs. for the Appellant.
Anis Ahmed Khan, Shoaib Ahmad Khan, Mohd. Naved Mian,
Sandeep Garausa, Advs. for the Respondent.
The Judgment of the Court was delivered by
MOHAN M. SHANTANAGOUDAR, J. I. Leave granted.
2. The order dated 07 .09.2016 passed in Civil Revision Petition
No.2472/2016 by the High Court of Judicature at Hyderabad allowing
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SUPREME COURT REPORTS
[2017] 5 S.C. R.
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the Revision Petition and setting aside the order dated 08.03.2016 on
I.A.No.458/2015 in OS No.59/2013 passed by the Andhra Pradesh State
Wakf Tribunal at Hyderabad is called in this Appeal. The brief facts
leading to th is appeal are as under:
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3. The respondent herein filed suit No.59/2013 before Andhra
Pradesh State WakfTribunal at Hyderabad seeking cancellation of the
sale deed dated 12.1.2013 in respect of the land bearing Survey No.113
admeasuring 4 acres 72 cents situated at Pernamitta village, Prakasam
District, State ofAndhra Pradesh. Certain consequential reliefs are also
sought for. It is the case of plaintiff that Survey Nos.112 and 113 to an
extent of 18 acres 88 cents situated at Pernamitta village were not.ified
in the Official Gazette ofWakf Board dated 28.6.1962 at serial No.966
and were also surveyed by the Survey Commissioner appointed under
the provisions of the Wakf Act. The part of Survey No.113 to an extent
of 4 acres 72 cents was purchased by the defendant through the sale
deed dated 12.1.2013 executed by Mr.Alluri Koteshwar Rao (Defendant
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No.6) in whose name property was standing. Plaintiff claims to be
Mutwalli of the Wakf. The sum and substance of the plaintiff's case is
that the defendant Nos. I to 5 have purchased the suit property from a
private person though the said property is the Wakf property and therefore
the sale deed dated 12.1.2013 does not convey any right, title or interest
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in favour of the defendants I to 5.
4. It is the case of the appellant/defendant No. I that the property
was and is not a Wakf property inasmuch as it was never notified as a
Wakf property; though official gazette was published as back as on
28.6.1962, the property does not find place in the gazette notifying the
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same as Wakf property; it is a private property and that he had purchased
the same through a valid sale deed.
5. During the pendency of suit, an application was filed by the
defendant Nos. I to 5 including the appellant herein under Order VII
Rule 11 of the Code of Civil Procedure, 1908 (hereinafter called as
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'CPC') for rejection of plaint. The said application was allowed by the
WakfTribunal on 8th March, 2016. On revision by the plaintiff, the order
of rejection of plaint passed by the Wakf Tribunal is set aside by the
High Court.
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MADANURI SRI RAMA CHANDRA MURTHYv. SYED JALAL
301
[MOHAN M. SHANTANAGOUDAR, J.]
6. Learned counsel for the appellant taking us through the impugned
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judgment of the High Court submitted that this is a fit case wherein the
plaint ought to be rejected at the threshold inasmuch as the plaint does
not disclose any cause of action and the suit is barred by law. The property
in question is not notified in the Gazette as a Wakf Property at any point
of time till this date and hence it is not open for the respondentto file this
suit on the presumption that the property in question is a Wakf property.
Since the property is not a Wakf property, the Wakf Tribunal has no
jurisdiction to entertain the suit. That though the notification issued
containing the list of certain Wakf properties was gazetted by the Wakf
Board as early as in the year 1962, the High Court is not justified in
raising doubt in the year 2013 about such notification which had been
remained unchallenged for more than 50 years. It is not open for the
respondent to generate the litigation only to harass the appellant.
7. Per contra, advocate for the respondent submitted that though
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the gazette notification did not contain the property in question as a Wakf
property, the Survey Report disclosed the property in question as a Wakf D
property and therefore the defect while publishing the Gazette notification
needs to be rectified. He submitted that the High Court is justified in
passing the impugned judgment after verifying the records and therefore,
it is not a fit case for rejecting of plaint at the threshold.
8. The plaint can be rejected under Order VII Rule 11 if E
conditions enumerated in the said provision are fulfilled. It is needless to
observe that the power under Order VII Rule 11, CPC can be exercised
by the Court at any stage of the suit. The relevant facts which need to
be looked into for deciding the application are the averments of the plaint
only. If on an entire and meaningful reading of the plaint, it is found that
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the suit is manifestly vexatious and merit less in the sense of not disclosing
any right to sue, the court should exercise power under Order VII Rule
11, CPC. Since the power conferred on the Court to terminate civil
action at the threshold is drastic, the conditions enumerated under Order
VII Rule 11 ofCPC to the exercise of power ofrejection of plaint have
to be strictly adhered to. The averments of the plaint have to be read as
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a whole to find out whether the averments disclose a cause of action or
whether the suit is barred by any law. It is needless to observe that the
question as to whether the suit is barred by any law, would always depend
upon the facts and circumstances of each case. The averments in the
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(2017] 5 S.C.R.
written statement as well as the contentions of the defendant are wholly
immaterial while considering the prayer of the defendant for rejection of
the plaint. Even when, the allegations made in the plaint are taken to be
correct as a whole on their face value, if they show that the suit is
barred by any law, or do not disclose cause of action, the application for
rejection of plaint can be entertained and the power under Order VII
Rule 11 of CPC can be exercised. If clever drafting of the plaint has
created the illusion of a cause of action, the court will nip it in the bud at
the earliest so that bogus litigation will end at the earlier stage.
9. In order to prima facie satisfy his case as pleaded in plaint
that the Suit property is a Wakf property, the plaintiff produced certain
documents including Gazette Notification dated 28.06.1962. The
averments in the plaint disclose that the property bearing Survey No.
113 situated at Pemamitta village was notified as Wakf property under
Serial No. 966 in the Official Gazette published by Andhra Pradesh State
WakfBoard on 28.06.1962. On verification of the Gazette Notification,
the WakfTribunal has concluded that under Serial No. 966 (Page No.742)
the property attached toAshoorkhana situated at Kolachanakota village
was shown and not the property belonging to Pernamitta village. The
name of the plaintiff was also not shown as Mutwalli. The property in
question is situated in Pemamitta village, whereas the Gazette which is
relied upon shows that the survey no. 113 is situated at a different vii I age
which is stated to be far away (about 20 kms.) from village Pernamitta.
There is one more Ashoorkhana situated at Pernamitta village which is
not the subject matter of this litigation. List ofwakf properties pertaining
to Pernamitta village does not contain the property in question. The
Tribunal, on facts, thus has concluded that property in question does not
find place in the Official Gazette of the Wakf Board. The High Court
also concurs with the Wakf Tribunal in that regard. Thus, there are
concurrent findings of fact that property in question was not notified in
Official Gazette as a Wakf property, as alleged by the plaintiff/respondent.
10. The High Court though has agreed with the finding of fact
('.)
arrived at by the Tribunal that the property was not notified as Wakf
property in the Official Gazette, raising some doubt about the noninclusion/inclusion of the property in the Survey Commissioner's Report,
erroneously has proceeded to set aside the order of the Tribunal.
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MADANURI SRI RAMA CHANDRA MURTHY v. SYED JALAL
303
[MOHAN M. SHANTANAGOUDAR, J.]
11. As mentioned supra, notification containing the list ofWakf A
properties relied upon by the plaintiff was published in Gazette as back
as on 28.06.1962 as per the provisions of Section 5 of Wakf Act, 1954
(hereinafter, in short, called as 1954 Act) which is subsequently replaced
by the Waqf Act, 1995 (hereinafter, in short, called as 1995 Act). Before
proceeding further, it would be beneficial to note the certain relevant
provisions contained under the 1954 Act as well as 1995 Act for the
purpose of deciding this matter.
TheWAQFACT,1995
4. Preliminary survey of
[a ugaf]. -
(I) The State Government may,
by notification in the Official
Gazette, appoint for the state a
Survey
Com missioner
of
[A uqaf]
and
as
many
Additional or Assistant Survey
Commissioners of [Auqaf] as
may
be
necessary
for
the
purpose of making a survey of
[auqaf in the state].
[(IA) Every State Government
shall maintain a list of auqaf
referred to in
sub~section (l)
and the survey of auqafshall be
compleh:d within a period of
one year
from
the
date of
commencement of the W akf
(Amendment) Act, 2013, in
case such survey was not done
before the commencement of
the W akf (Amendment) Act,
2013:
Provided that where no Survey
Commissioner
of
Waqf
has
been
appointed
a
Survey
Commissioner for aquaf ~hall
be
appointed
within
three
months from the date of such
commencement.]
TheWAKF ACT, 1954 (Old)
4.Preliminary survey of
wakfs.-
(1) The
State
Government
may, by notification
in
the
Official Gazette, appoint for
the
state a [Survey
Commissioner] of Wakfs and·
as
many
Additional
or
Assistant
[Survey
Commissioners] of Wakfs as
may
be
necessary
for
the
purpose of making. a survey of
W akf properties existing in the
State
at
the
date
of
the
commencement of this Act.
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(2) All Additional and Assistant
Survey
Commissioners
of
[A uqaf]
shall
perform
their
functions under this Act under
the
general
supervision
and
control
of
the
Survey
Commissioner of [A uqaf].
(2)
Al I
Additional
and
Assistant
[Sur':'ey
Commissioners]
of
Wakfs
shall perform their functions
under
this
Act
under
the
general supervision and control
of the [Survey Commissioner]
ofWakfs.
(3) The Survey Com missioner
(3 )The [Survey Com miss ion er]
shall, after making such inquiiy
shall,
after
making · such
as he may consider necessary,
submit his report, in respect of
[auqaf] existing at the date of
commencement of this Act in·
the State or any part thereof, to
the State Government containing
the
following
particulars,
namely:-
(a) ............ ..
(b) .............. .
(c) .............. .
(d) .............. .
(e) ............... and
(f) ............... .
(4) ........................ .
(5) ...... .
(6) The State Government may,
by notification in the Official
Gazette,
direct
the
Survey
Commissioner to make a second
or subsequent survey of [waqf]
properties in the State arid the
provisions of sub-sections (2),
(3), (4) and (5) shall apply to
such survey as they apply to a
survey
directed
under
subsection (I):
inquiry as he may con sider
necessary, submit his report,
[in respect of Wakfs existing at
the date of commencement of
th is A ct in the State or any part
lliereot]
~
llie
s~~
Government
containing
the
following particulars, namely:-
(a) ............ ..
(b) .............. .
(c) .............. .
(d) ............. ..
(e) ............... and
(f) ............... .
(4) ........................ .
(5) ... ..
(6)
The
State
Government
may, by notification in the
Official
Gazette,
direct the
Survey Commissioner to make
a second or subsequent survey
of wakf: properties in the State
and the provisions of sub·
sections (2), (3), (4) and (5)
shall apply to such survey as
they apply to a survey directed
under sub-section (I):
MADANURI SRI RAMA CHANDRA MURTHY v. SYED JALAL
305
[MOHAN M. SHANTANAGOUDAR, J.]
Provided that no such second or
subsequent survey shall be made
until the expiry ofa period of[ten
years] from the date on which the
report
in
relation
to
the
immediately previous survey. was
submitted under sub-section(3):
[Provided further that the waqf
properties already notified shall
not
be
reviewed
again
in
subsequent survey except where
the status of such property has
been changed in accordance with
the previous of any law.]
5. Publication of list of (augafJ. -
(I) On receipt of a report under
sub-section (3) of section 4, the
State Government shall fotward a
copy of the same to the Board.
(2) The Board shall examine the
report forwarded to it under subsection (I) and [fotward it back to
the Government within a period of
. six months for publication in the
Official Gazette] a list of Sunni
[auqaf] or Shia [auqat] in the
State, whether in existence at the
commencement of this Act or
coming into existence thereafter,
to which the report relates, and
contll.ining such other particulars
as may be prescribed.
[(3 )The revenue authorities.shall-
(i) include the list pfauqafreferred
to
in
sub-section
(2), while
updating the'land records: and
ii) take into consideration the list
of auqaf referred to in sub-section
(2), while deciding mutation in the
Ian d records.]
[(4) The State Government shall
maintain · a record of the lists
published under sub-section 12)
from time to time.]
Provided that no such second or
subsequent survey shall be made
until the expiry of a period of
twenty years from the date on
which the repo11 in relation to the
immediately previous survey was
submitted under sub-section (3).]
5. Publication of list ofwakfs.-
(1) On receipt of a report under
sub-section (3) of section 4, the
State Government shall fo1ward a
copy of the same to the Board.
(2) The Board shall examine the
report fo iwarded to it under subsection (I) and publish; in the
Official Gazette, a list of wakfs
[[in the State, or as the case may
be, the part of the State, whether
in existence at the commencement
of this
Act or
coming
into
existence thereafter] to which the
report relates, and] containing
such
particulars
as
may
be
prescribed.
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6. Disputes regarding !augaf!.-
(I) If any question arises whether
a particular properly specified a
[waqf] property in the list of
[auqaf] is [waqf] properly or not
or whether a [waqf] specified in
such list is a Shia [waqf] or Sunni
[waqf],
the
Board
or
the
mutawalli of the [ waqf] of [any
person aggrieved] may institute a
suit in a Tribunal for the decision
of the question and the decision of
the Tribunal in respect of such
matter shall be final:
6. Disputes rega nli ng wakfs. -
(1)
If any
question
arises
[whether a particular property
specified as wakf property i'n a
list of wakfs published under
sub-section (2) of Section 5 is
wakf property or not whether a
wakf specified in such list is a
Shia wakf or sunni wakf] the
Board of the mutawall i of the
wakf or any person interested
therein may institute a suit in a
civil
court
of
competent
jurisdiction for the decision of
Provided that no such suit shall be
the question and the decision of
entertai~ed by the Tribunal after
the civil court in respect of such
the expiry of one year from the
matter shall be final:
date
of
the
publication
.of Provided that no such suit shall
the list of [auqaf]:
be entertained by the Civil court
[Provided further that no suit shall
after the expiry of one year
be instituted before the Tribunal
from the date of the publicaiion
in
respect of such properties
of the list of wakfs under subnotified in a second or subsequent
survey pursuant to the provisions
contained in sub-section (6) of
section 4.]
(2) .......
(3) ........
section (2) of Section 5:
[Provided further that in the
case of the list of wakfs relating
to any part of the State and
published or purporting to have
been
published
before
the
commencement of the Wakf
(Amendment) Act, 1969 (38 of
1969,
such
suit
may
be
entertained by the Civil Court
within the period of one year
from such commencement.]
(2) ........
(3) ......... .
MADANURI SRI RAMA CHANDRA MURTHY v. SYED JALAL
307
[MOHAN M. SHANTANAGOUDAR, J.]
(4) The list of [auqaf] shall, unless it
is modified in pursuance of a
decision or the Tribunal under subsection (I), be final and conclusive.
( 4) The list of wakfs published
under sub-section (2) of Section 5
shall, unless it is modified in
pursuance of a decision of the
Civil Court under sub-section (I),
be final and conclusive.
(5) On and from the commencement (5)
On
and
from
the
of this Act in a State, no suit or other commencement
of the
Wakf
legal proceeding shall be instituted or (Amendment) Act, 1984 in a State,
A
B
commenced in a court in that state in no suit or other legal proceeding
C
relation to any question referred to in shall be instituted or commenced
sub-section(I).
in a Civil Court in that State in
7. Power of Tribunal to determine
disputes regarding I auqa t]
relation to any question referred in
sub-section (I).]
6-A. Power ofTribunal to
ddermine disputes reganling
wakfs
(I) If, after the commencement of (I) If, after the commencement of
this Act, [any question or dispute] the Wakf (Amendment) Act, 1984,
arises, whether a particular property any question arises whether a
specified as [ waqf] property in a list particular property specified
~
of [auqaf] is [waqf] property or not, wakf property in a I ist of wakfS
or whether a [waqf] specified in such published under sub-section (2) of
list is a Shia [ waqf] or a Sunni the Section 5 is wakf property or
[waqf], the Board or the mutawalli of not, or whether a wakf specified in
the [waqf], or [or any person six:h list is a Shia w.ikfor a Sunni
aggrieved by the publication of the wakf, the Board or the mutawalli
list of auqaf under section 5] therein, of the w.ikf,
or any person
may apply to the Tribunal having i ntere;ted therein, may apply to the
jurisdiction in relation to such Tribunal having j urisdi cti on in
property, for the decision of the relation to such property, for the
question and the decision of the decision of the question and the
Tribunal thereon shall be final: decision of the Tribunal in respect
Provided that -
of such matter shall be final:
Provided that-
.
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(a) in the case of the list of (a) in the case of the list of wakfS
[auqaf] relating to any part of the relating to any part of the State
State and published after the and published or purporting to
commencement of this Act no
have been published after the
such
application
shall
be commencement of the
Wakf
entertained after the expiry of (Amendment) Act, 1984, no such
one year from
the date of
publication of the list [auqaf];
and
application shall be entertained
after the expiry of one year from
the date of pub! ication of the I ist
of wakfs under sub-section (2)
and Section 5; and
(b) in the ease of the list [auqaf] (b) in the case of the list of wakfS
relating to any part of the State relating to any part of the State
and published at_ any time within
and published or purporting to
D
, a period of one year immediately have been published at any time
preceding the commencement of within a period of one year
this Act, such an application may
immediately
preceding
the
be entertained by Tribunal within
commencement of the
Wakf
the period of one year from such (Amendment) Act, 1984, such an
E
commencement:
application may be entertained
by
the
Tribunal
within the
period of one year from such
com mencem en t:
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Provided further that where any
Provided further that where any
such question has been heard and such question has been heard
finally decided by a civil court in
and finally decided by a civil
a suit instituted before such
court in a suit instituted before
commencement,
the
Tribunal such
commencement,
the
shall not re-open such question.
Tribunal shall not re-open such
question.
12. A bare reading of the afore-quoted provisions (relevant
provisions for the purpose of this matter) contained in 1954 Act and
MADANURI SRI RAMA CHANDRA MURTHY v. SYED JALAL
309
[MOHAN M. SHANTANAGOUDAR, J.]
1995 Act, makes it manifestly clear that the provisions, which are relevant A
for this case are almost parimateria with each other.
13. Section 4 of 1954 Act, empowered the State Government to
appoint a State Commissioner, and as many Additional and Assistant
Survey Commissioners ofWakfas may be necessary, by a notification
in the Official Gazette for the purpose of making survey of wakf B
properties existing within the State. The Survey Commissioner after
making a survey ofwakfproperties would submit his report to the State
Government containing various particulars as mentioned in sub-sections
(3) and (4) of Section 4 of the Act. Section 5 of 1954 Act mandated
that on receipt of such report from Survey Commissioner made under
C
·sub-section (3) of Section 4, the State Govern.ment should forward a
copy .of the same to the Wakf Board. The Wakf Board would examine
the report forwarded to it and publish in Official Gazette; the listqf ..
Wakfs in the State; For resolving the disputes regarding. Wakfs, Section
6of1954 Act, provided jurisdictional Civil Court as a fonim and decision·
of Civil Court in respect of such matters should be final. It was also
D.
· clarified that no such suit should be entertained by .the Civil Court, after
the expiry ofone year from the date of publication of the Ust ofWakfs as
per sub-section (2) ofSection 5. Sub-section (4) of Section 6 stated that
the list ofWakfs published under sub-section (2) of Section 5 shall be
final and conclusive unless such list is modified on the direction of the
E
Civil Court.
14. The provisions found in Sections 5 and 6 of Wakf Act 1995
and Act of 1954 are almost akin to each other. However the change
brought in by the Parliament under 1995 Act is that, in the case o~ dispute
regarding Wakfs, the aggrieved party needs to approach the WakfTribunal
constituted under Section 83 of the Waqf Act 1995 and consequently the
jurisdiction of the Civil Court is taken away. Except the aforesaid change,
no othenubstantial modification is found in those provisions. Section 7
of 1995 Act empowers the. Tribunal to determine the disputes, regarding ·
Auqaf/Wakfs, the particulars ofwhich are specified therein.
15. Section 6 and Section 7 ofWaqf Act 1995 bars jurisdiction
of the Civil Court to try the civil suit in respect of questions specifically
enumerated under those provisions. Section 85 ofWaqf Act, 1995 further
clarifies that no suit or other legal proceeding shall lie in any civil court,
revenue court and any other authority in respect of any dispute, question
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A
or other matter relating to any wakf, wakf property or other matter
which is required by or under this Act to be determined by a Tribunal.
B
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16. The overall view of the aforementioned provisions contained
in Wakf Act, 1954 and Waqf Act 1995 make it evident that even under
1954 Act, as in 1995 Act, the Survey Commissioners were apiointed for
the purpose of making survey of wakfs in State. The Survey
Commissioner was duty bound to conductthe survey of wakfs in the
State and after making such enquiry, as he might consider necessary,
would submit his report in respect ofWakfs existing in .the State to the
State Government with necessary particulars. Copy of the said report
would be forwarded by the State to the WakfBoard which in turn would
examine the report by applying its mind and thereafter would publish the
notification. Whereas under 1995 Act, the WakfBoard after examining
the report forwards it back to Government within a period of 6 months
for publication in the Official Gazette in the St,ate. Pursuant thereto the
State will publish the Gazette notification. The revenue authorities will
D
consequently include the list of Auqaf properties while updating the
revenue records under sub-section (3) of Section 5of1995 Act.
17. 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
E
list in the official gazette by the State under 1995 Act, (it was by the
Board under 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
p
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 ofit's mind and
only thereafter the same will be sent to Government for notifying the
same in the Gazette. Since the list is prepared and published in the official
Gazette by following aforementioned procedure, there is no scope for
G
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 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
H
MADANURI SRI RAMA CHANDRA MURTHY v. SYED JALAL
311
[MOHAN M. SHANTANAGOUOAR, J.]
Court to conclude that the Surveyor's report will have to be reconsidered.
A
On the contrary Surveyor's report merges with the Gazette Notification
\
published under Section 5 of the Wakf Act.
18.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
B
not notified in the official Gazette as Wakf property. If anybody including
the WakfBoard 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
C
practically questioned the non"inclusion of the property in the list and the
validity of the list notified in the official gazette dated 28.06.1962 after
the lapse of about 50 years, i.e. in the year 2013 by filing the present
suit.
19. As per Section 27of1954 Act (Section 40of1995 Act), the o
Board may itself collect information regarding any property which it has
reason to believe to be wakf property and if any question arises whether
a particular property is wakf property or not the Board after making
such enquiry as it deems fit, decide the question. The decision of the
Board on any question under sub-section ( 1) of Section 27 of 1954 Act
(or under Section 40( 1) of 1995 Act) shall, unless revoked or modified
by the Civil Court, be final.