AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (4) TMI 1567
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....illage, Prakasam District, State of Andhra 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 notified in the Official Gazette of Wakf 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 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. 1 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 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 28.6.196....
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....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 meritless in the sense of not disclosing any right to sue, the court should exercise power Under Order VII Rule 11, Code of Civil Procedure. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated Under Order VII Rule 11 of Code of Civil Procedure to the exercise of power of rejection of plaint 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. 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 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....
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.... 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. The WAQF ACT, 1995 The WAKF ACT, 1954 (Old) 4. Preliminary survey of [auqaf]. - (1) The State Government may, by notification in the Official Gazette, appoint for the state a Survey Commissioner of [Auqaf] 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]. [(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....
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.... 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 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 (1): 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 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 mon....
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.... that state in relation to any question referred to in Sub-section (1). 6. Disputes regarding wakfs. - (1) If any question arises [whether a particular property specified as wakf property in 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 Shiawakf or sunniwakf] the Board of the mutawalli of the wakf or any person interested therein may institute a suit in a civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be final: Provided that no such suit shall be entertained by the Civil court after the expiry 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)....
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....nal: Provided that - (a) in the case of the list of wakfs relating to any part of the State and published or purporting to have been published after the commencement of the Wakf (Amendment) Act, 1984, no such application shall be entertained after the expiry of one year from the date of publication of the list of wakfs under Sub-section (2) and Section 5; and (b) in the case of the list of wakfs relating to any part of the State and published or purporting to have been published at any time within a period of one year immediately preceding the commencement of the Wakf (Amendment) Act, 1984, such an application may be 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....
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....tter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal. 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 appointed for the purpose of making survey of wakfs in State. The Survey Commissioner was duty bound to conduct the survey of wakfs in the State and after making such enquiry, as he might consider necessary, would submit his report in respect of Wakfs existing 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 will publish the Gazette notification. The revenue authorities will consequently include the list of Auqaf properties while updating the revenue records under Sub-section....
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....suit. 19. 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 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 co....