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(Reportable)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5368/2017 (Arising out of S.L.P. (Civil) No.35352 of 2016)

Madanuri Sri Rama Chandra Murthy ….Appellant

Vs.

 Syed Jalal                          …..Respondent

J U D G M E N T

Mohan M.Shantanagoudar,J.

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  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 this appeal are as under:

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3. The respondent herein filed suit  No.59/2013 before  Andhra

Pradesh State Wakf Tribunal 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  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.

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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 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

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and hence it is not open for the respondent to 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

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 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.

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8. The  plaint  can  be  rejected  under  Order  VII  Rule  11  if

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 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, 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 of CPC 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.

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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 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.  On verification

of the Gazette Notification, the Wakf Tribunal has concluded that

under  Serial  No.  966  (Page  No.742)  the  property  attached  to

Ashoorkhana situated at Kolachanakota village was shown and not

the  property  belonging  to  Pernamitta  village.  The  name  of  the

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plaintiff was also not shown as Mutwalli. The property in question

is situated 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. There is one more Ashoorkhana situated at Pernamitta

village which is not the subject matter of this litigation. List of wakf

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

non-inclusion/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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11. As mentioned supra, notification containing the list of  Wakf

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.

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, 20136, in case such survey  was  not  done  before  the commencement  of  the  Wakf (Amendment) Act, 2013: Provided  that  where  no  Survey

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  Wakf  properties  existing  in the  State  at  the  date  of  the commencement of this Act.

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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) …………….

(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  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

(2) All Additional and Assistant [Survey Commissioners] of Wakfs shall perform their  functions  under  this  Act  under the general supervision and control of the [Survey Commissioner] of Wakfs.

(3)  The  [Survey  Commissioner]  shall, after making such inquiry as he may consider necessary, submit his report, [in  respect  of  Wakfs  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 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

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the  expiry  of  a  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.]

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 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

5.  Publication of list of wakfs. –

(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 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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time to time.]

6.  Disputes regarding [auqaf]. –  

(1)  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: Provided  that  no  such  suit  shall  be entertained by the Tribunal after  the expiry of one year from the date of the publication of the list of [auqaf]: [Provided further that no suit shall be instituted  before  the  Tribunal  in respect of such properties notified in a second  or  subsequent  survey pursuant to the provisions contained in sub-section (6) of section 4.]  

(2)…….

(3) ……..   (4) The list of [auqaf] shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive.

(5) On and from the commencement of this  Act  in a State,  no suit  or  other

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 Shia wakf or sunni wakf] 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)  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

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legal proceeding shall be instituted or commenced in a court in that state in relation to any question referred to in sub-section (1).  

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] specified in such list is a Shia [waqf] or a Sunni [waqf], the Board or the mutawalli of the [waqf], or [or any person aggrieved by the publication of the  list  of  auqaf  under  section  5] therein,  may  apply  to  the  Tribunal having jurisdiction in relation to such property,  for  the  decision  of  the question  and  the  decision  of  the Tribunal thereon shall be final: Provided that –  

(a)  in  the  case  of  the  list  of  [auqaf] relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list [auqaf]; and  

(b)  in  the  case  of  the  list  [auqaf] relating to any part of the State and published at any time within a period

6-A.   Power of Tribunal to determine disputes regarding wakfs

(1) If,  after the commencement of the Wakf  (Amendment)  Act,  1984,  any question  arises  whether  a  particular property specified as wakf property in a  list  of  wakfs  published  under sub-section (2) of the Section 5 is wakf property  or  not,  or  whether  a  wakf specified in such list is a Shia wakf or a  Sunni  wakf,  the  Board  or  the mutawalli  of the wakf, or any person interested  therein,  may  apply  to  the Tribunal having jurisdiction in relation to  such  property,  for  the  decision  of the  question  and the  decision  of  the Tribunal  in  respect  of  such  matter shall be final: 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

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of one year immediately preceding the commencement  of  this  Act,  such  an application  may  be  entertained  by 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.  

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 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 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

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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 State Government 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 list of Wakfs in

the State. For resolving the disputes regarding Wakfs, Section 6 of

1954  Act,  provided  jurisdictional  Civil  Court  as  a  forum  and

decision of Civil Court in respect of such matters should be final. It

was also clarified that no such suit should be entertained by the

Civil Court, after the expiry of one year from the date of publication

of the list of Wakfs as per sub-section (2) of Section 5.  Sub-section

(4)  of  Section  6  stated  that  the  list  of  Wakfs  published  under

sub-section (2)  of  Section 5 shall  be final  and conclusive unless

such list is modified on the direction of the 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 of

dispute regarding Wakfs, the aggrieved party needs to approach the

Wakf Tribunal constituted under Section 83 of the Waqf Act 1995

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and consequently the jurisdiction of the Civil Court is taken away.

Except the aforesaid change, no other substantial modification is

found in those provisions.   Section 7 of  1995 Act empowers the

Tribunal  to  determine  the  disputes,  regarding  Auqaf/Wakfs,  the

particulars of which are specified therein.

15. Section 6 and Section 7 of Waqf Act 1995 bars jurisdiction of

the  Civil  Court  to  try  the  civil  suit  in  respect  of  questions

specifically enumerated under those provisions. Section 85 of Waqf

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 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.  

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

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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 (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

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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 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.

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

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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 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 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 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

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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

vs. Hathija Ammal 1 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 from the date of commencement of the Wakf (Amendment) Act, 2013, in case such survey

1

(2001) 8 SCC 528

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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 auqaf shall be appointed within three  months  from  the  date  of  such commencement.”

21. 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  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  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.

22. In the matter on hand, as mentioned supra, 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

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property. Such non-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, in our considered opinion, the averments in the plaint do

not  disclose  the  cause  of  action  for  filing  the  suit.  The  suit  is

manifestly meritless and vexatious. So also the suit is barred by law

for the reasons mentioned supra.

 23. In view of the above, the Order of the High Court is liable to be

set  aside.   Accordingly,  the  same  stands  set  aside.  Appeal  is

allowed. The order of the Wakf Tribunal is restored. No costs.

…..…………………………….J.   (R.K.Agrawal)

 …..……………………………J. (Mohan  M.  Shantanagoudar)

New Delhi, Dated: April 19, 2017