Thursday 17 February 2022

Whether notification issued by wakf board in official gazette is binding on state government?

 Admittedly, the Government is reflected as the owner of the land in question since the year 1912-13. The Government has exercised its rights of ownership as a successor of the Sovereign. Consequent to Abolition Regulation and payment of commutation under the Commutation Regulation, the State Government had transferred land to the Corporation. A public notice was also issued to invite objections, if any, to the allotment of the land but since none were received, the Corporation made further allotment to various corporate entities. The Wakf Board is a statutory authority established under the Act and is a “State” within the meaning of Article 12 of the Constitution. A constitution Bench of this Court in a judgment reported as Rajasthan State Electricity Board, Jaipur v. Mohan Lal & Ors., AIR 1967 SC 1857 held “that the expression “other authorities” in Article 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities”.{Para 120}

122. Since, the Wakf Board is state, it has act to act fairly and reasonably. This Court in a judgment reported as Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay, (1989) 3 SCC 293 held that the action of a statutory authority must be reasonable and taken only upon lawful and relevant grounds of public interest. 

125. Thus, the State Government, as a juristic entity, has a right to protect its property through the writ court, just as any individual could have invoked the jurisdiction of the High Court. Therefore, the State Government is competent to invoke the writ jurisdiction against the action of the Wakf Board to declare the land measuring 1654 acres and 32 guntas as wakf property.

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

129. It is to be noted that the presence of the Government Pleader before the Nazim Atiyat was for a limited purpose as the grants were to be paid by State Government. The State was not a party either before the Nazim Atiyat or before the High Court. The State would be bound by the orders, if it was impleaded as party as it is likely to be affected on account of the orders passed. The liability of State for payment of grant was not in dispute but the question was as to whom the grants would be payable. Thus, the presence of Government Pleader was for the limited purpose of facilitating the implementation of the orders passed.

130. A perusal of the record of the Wakf Board, as extracted above, shows that the Errata notification was published when the same was sent by the Chief Executive Officer of the Wakf Board to the Commissioner, Government Printing Press on 13.03.2006. This publication of notification was made under Section 5(2) of the 1995 Act under the authority of the Chief Executive Officer of the Wakf Board. Hence, the notification was not at the instance of the State Government but was an act of the Wakf Board alone.

131. The argument raised that since the Errata notification was published in State Government Gazette, therefore, the State cannot turn around to say that they had no knowledge or that they are not bound by the notification so published is not tenable. We find that the purpose, object and scope of the publications in the Official Gazette is not what is sought to be contended. The Court is to presume the genuineness of any documents published in any Official Gazette as contemplated by Section 81 and Section 114 (e) of the Evidence Act, 1872. The publication in the Official Gazette is not only for the affairs of the State but has multiple uses. In fact, this question has been examined by a Division Bench of Delhi High Court in a judgment reported as Universal Cans & Containers Ltd. v. Union of India, 1991 SCC On Line Del 784, wherein the Court has quoted various parts of the Gazette required to be published by the Central Government. Section 4, Part III of the Gazette is meant for Miscellaneous Notifications including Notifications, Orders, Advertisements and Notices issued by Statutory Bodies, whereas Part IV is meant for Advertisements and Notices issued by Private Individuals and Private Bodies. Similar scheme of the publication in the Gazette would be available in the States as well. The High Court held as under:-
“8. Under Section 3(39) of the General Clauses Act, 1897, “Official Gazette” or “Gazette” shall mean the Gazette of India or the Official Gazette of a State. What is Official Gazette and under what authority it is published? is yet another question. A Gazette is generally understood as an Official Government Journal containing public notices and other prescribed matters. Legal Glossary (1983 Edition) issued by the Legislative Department of the Ministry of Law, Justice and Company Affairs, Government of India, defines Gazette as “an official newspaper containing lists of Government appointments, legal notices, dispatches, etc
xxx xxx

20. Under Section 81 of the Indian Evidence Act, 1872, the Court shall presume the genuineness of every document purporting to be in Official Gazette, and read with Section 114 of the said Act and Illustration (e) there to, the court can presume that the Official Gazette was notified on the date as appearing in the Official Gazette. However, this is only a rebuttable presumption. It can be rebutted by the evidence to the contrary. As noted above, in the present case it has been shown that the Official Gazette was notified on a date after the date appearing on the Gazette. Section 5 of the General Clauses Act, 1897, provides that where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent of the President. This is not applicable in the present case. Here we are concerned with a notification in the Official Gazette”.

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

Supreme Court



CIVIL APPEAL NO. 10770 OF 2016

7th February 2022

Citation: 2022 ALL SCR (ONLINE) 140

Read full Judgment here: Click here

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