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TMI Blog2017 (4) TMI 1567X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 will publish the Gazette notification. The revenue authorities will consequently include the list of Auqaf properties while updating the revenue records under Sub-section (3) of Section 5 of 1995 Act. 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 1995 Act, (it was by the Board under 1954 Act). 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 Wakf Board, the Wakf Board after examining the report published the list in the official gazette in the year 1962. Hence, Sub-section (1A) of Section 4 also will be of no avail to the Plaintiff - the Tribunal and the High Court, on facts have held that the property in question is not included in the list pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Wakf property and therefore the sale deed dated 12.1.2013 does not convey any right, title or interest in favour of the Defendants 1 to 5. 4. It is the case of the Appellant/Defendant No. 1 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 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. 1 to 5 including the Appellant herein Under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter called as 'CPC') for rejection of plaint. The said application was allowed by the Wakf Tribunal 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. 6. Learned Counsel for the Appellant taking us through the impugned 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred by any law, would always depend upon the facts and circumstances of each case. The 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 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 Code of Civil Procedure 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 Pernamitta village was notified as Wakf property under Serial No. 966 in the Official Gazette published by Andhra Pradesh State Wak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of making a survey of [auqaf in the state]. [(1A) Every State Government shall maintain a list of auqaf referred to in Sub-section (1) and the survey of auqaf shall be completed within a period of one year from the date of commencement of the Wakf (Amendment) Act, 2013, in case such survey was not done before the commencement of the Wakf (Amendment) Act, 2013: Provided that where no Survey Commissioner of Waqf has been appointed a Survey Commissioner for aquaf shall be appointed within three months from the date of such commencement.] (2) All Additional and Assistant Survey Commissioners of [Auqaf] shall perform their functions under this Act under the general supervision and control of the Survey Commissioner of [Auqaf]. 3) The Survey Commissioner shall, after making such inquiry 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the report in relation to the immediately previous survey was submitted under Sub-section (3).] 5. Publication of list of [auqaf]. (1) On receipt of a report under Sub-section (3) of Section 4, the State Government shall forward a copy of the same to the Board. (2) The Board shall examine the report forwarded to it under Sub-section (1) and [forward it back to the Government within a period of six months for publication in the Official Gazette] a list of Sunni [auqaf] or Shia [auqaf] in the State, whether in existence at the commencement of this Act or coming into existence thereafter, to which the report relates, and containing such other particulars as may be prescribed. [(3) The revenue authorities shall (i) include the list of auqaf referred 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 land records.] [(4) The State Government shall maintain a record of the lists published under Sub-section (2) from time to time.] 5. Publication of list of wakfs. (1) On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of one year from the date of the publication of the list of wakfs under Sub-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).......... (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 (1), be final and conclusive. (5) On and from the commencement of the Wakf (Amendment) Act, 1984 in a State, no suit or other legal proceeding shall be instituted or commenced in a Civil Court in that State in relation to any question referred in Sub-section (1).] 7. Power of Tribunal to determine disputes regarding [auqaf] (1) If, after the commencement of this Act, [any question or dispute] arises, whether a particular property specified as [waqf] property in a list of [auqaf] is [waqf] property or not, or whether a [waqf] s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertained by the Tribunal within the period of one year from such commencement: Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the 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 1995 Act, makes it manifestly clear that the provisions, which are relevant for this case are almost pari materia 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 of Wakf as may be necessary, by a notification in the Official Gazette for the purpose of making survey of wakf properties existing within the State. The Survey Commissioner after making a survey of wakf properties 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 Sub-section (3) of Section 4, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment 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 will publish the Gazette notification. The revenue authorities will consequently include the list of Auqaf properties while updating the revenue records under Sub-section (3) of Section 5 of 1995 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 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 a formal enqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 this context, it is relevant to note the observations by this Court in the case of T.N. Wakf Board v. Hathija Ammal (2001) 8 SCC 528 which read thus: In the event, any property has been omitted by inadvertence or otherwise, then it is for the Wakf Board to take action as provided Under Section 27 of the Act. If the Wakf Board has reason to believe that a particular property is a wakf property then it can itself collect information and if any question arises whether a particular property is a wakf property or not, it may, after making such enquiry as it may deem fit decide the question and such decision of the Wakf Board shall be final unless revoked or modified by a civil court. Such action has not been taken by the Wakf Board in this case. 20. Sub-section (1A) of Section 4 is inserted by Act 27 of 2013 w.e.f. 1.11.2013 and the same reads thus: (1A) Every State Government shall maintain a list of auqaf referred to in Sub-section (1) and the survey of auqaf shall be completed within a period of one year ..... X X X X Extracts X X X X X X X X Extracts X X X X
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