Supreme Court: Money Recovery Suit Won't Be Commercial Suit Unless Disputed Property Is 'Actually Used' In Trade and Commerce

 The above issue was considered in Ambalal Sarabhai Enterprises

Limited v. K.S. Infraspace LLP & Anr. reported in (2020) 15 SCC 585 where the implication of Section 2(1)(c)(vii) was construed. In

the concurring judgment, the following was expressed by Justice

Banumathi:

“37. A dispute relating to immovable property per se

may not be a commercial dispute. But it becomes a

commercial dispute, if it falls under sub-clause

(vii) of Section 2(1)(c) of the Act viz. “the

agreements relating to immovable property used

exclusively in trade or commerce”. The words “used

exclusively in trade or commerce” are to be

interpreted purposefully. The word “used” denotes

“actually used” and it cannot be either “ready for

use” or “likely to be used” or “to be used”. It

should be “actually used”. Such a wide interpretation

would defeat the objects of the Act and the fast

tracking procedure discussed above.” {Para }

 S U P R E M E C O U R T O F I N D I A

 RECORD OF PROCEEDINGS

SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 2986/2024

S.P. VELAYUTHAM & ANR. Vs M/S EMAAR MGF LAND LIMITED.

CORAM : HON'BLE MR. JUSTICE HRISHIKESH ROY

 HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA

 Date : 26-02-2024 .

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Whether the State can claim a right in a immovable property in the basis of gift deed if its name is not mutated in revenue record since long?

 The title of the land in suit had passed on to the State

after the donation and transfer of possession and after

construction, the hospital continued for more than

four decades before filing of the suit. The plaintiff, son

of the donor, also waited for 20 years despite admitted

knowledge of the hospital running over the land in

suit and did not take any action. {Para 26}

27. Article 65 under the Schedule to the Limitation Act

provides limitation of 12 years for filing a suit for

possession based on title. In the present case, merely

because the name of the plaintiff continued in the

revenue records (Jama Bandis), it would not confer

any title upon him. Revenue records (Jama Bandis)

are only entries for the purpose of realising tax by the

Municipal Corporations or land revenue by Gram

Sabhas. The plaintiff having failed to claim relief of

declaration, the suit itself would not be maintainable.

Further, for a suit for declaration, period of limitation

would be three years under Article 58 of the Schedule

to the Limitation Act, which in the present case was

long lost.

28. There is nothing on record available from the cross-examination of defendants 1 and 2 that the documents which they proved were either incorrect, doubtful or suspicious. The documents exhibited by the defendants could not be ignored as they were

public documents, copies of which were filed and duly

proved. Even if the deed was not placed on record but

due explanation was given, the facts of the case and

the evidence on record clearly established the case of

the defendant-appellant that the land in suit had been

donated by Sri Inder Singh, father of the plaintiff way

back in 1958. The lethargy/carelessness on the part

of the State in not getting the revenue records

corrected on the basis of the gift deed would not take

away the rights conferred on the State under the gift

deed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO…………OF 2024

Arising out of SLP (Civil) No.................of 2024

(@ Diary No.17885 of 2020)

THE STATE OF PUNJAB & ORS. Vs BHAGWANTPAL SINGH ALIAS BHAGWANT SINGH (DECEASED) THROUGH LRS.

Author: VIKRAM NATH, J.

Citation: 2024 INSC 518.

Dated: JULY 10, 2024.

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Circumstances where gazette publication is not conclusive proof of immovable property being wakf property?

  It may be noted that Wakf Board is a statutory authority under the Wakf Act. Therefore, the official Gazette is bound to carry any notification at the instance of the Wakf Board but nonetheless, the State Government is not bound by such a publication of the notification published in the official Gazette merely for the reason that it has been so published. In State of Andhra Pradesh v. A.P. State Wakf Board and Ors. MANU/SC/0155/2022, this Court consisting of one of us (V. Ramasubramanian, J. as a Member) held that the publication of a notification in the official Gazette has a presumption of knowledge to the general public just like an advertisement published in the newspaper but such a notification published at the instance of the Wakf Board in the State Gazette is not binding upon the State Government. It means that the notification, if any, published in the official Gazette at the behest of the Wakf Act giving the lists of the wakfs is not a conclusive proof that a particular property is a wakf property especially, when no procedure as prescribed Under Section 4 of the Wakf Act has been followed in issuing the same.{Para 35}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7467-7470 of 2014

Salem Muslim Burial Ground Protection Committee  Vs.  State of Tamil Nadu and Ors.

Hon'ble Judges/Coram:

V. Ramasubramanian and Pankaj Mithal, JJ.

Author: Pankaj Mithal, J.

Decided On: 18.05.2023.

Citation: MANU/SC/0597/2023.

Read full Judgment here: Click here

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Is the declaration of any immovable property as wakf valid if it was done without a survey of that property?

The another limb of the argument is that the suit land has been declared to be a wakf property vide notification dated 29.04.1959. In this regard, it has to be noted that such a declaration has to be in consonance with the provisions of the Wakf Act, 1954 or the Waqf Act, 1995. Both the aforesaid Acts lay down the procedure for issuing notification declaring any property as a wakf. {Para 30}

31. The Wakf Act, 1954, which actually is relevant for our purpose, provides that, first, a preliminary survey of wakfs has to be conducted and the Survey Commission shall, after such inquiry as may be deemed necessary, submit its report to the State Government about certain factors enumerated therein whereupon the State Government by a notification in the official Gazette direct for a second survey to be conducted. Once the above procedure of survey is completed and the disputes arising thereto have been settled, on receipt of the report, the State Government shall forward it to the Wakf Board. The Wakf Board on examining the same shall publish the list of wakfs in existence with full particulars in the official Gazette as contemplated Under Section 5 of the Act. Similar provisions exist under the Waqf Act, 1995.

32. A plain reading of the provisions of the above two Acts would reveal that the notification Under Section 5 of both the Acts declaring the list of the wakfs shall only be published after completion of the process as laid down Under Section 4 of the above Acts, which provides for two surveys, settlement of disputes arising thereto and the submission of the report to the State Government and to the Board. Therefore, conducting of the surveys before declaring a property a wakf property is a sine qua non. In the case at hand, there is no material or evidence on record that before issuing notification Under Section 5 of the Wakf Act, 1954, any procedure or the survey was conducted as contemplated by Section 4 of the Act. In the absence of such a material, the mere issuance of the notification Under Section 5 of the Act would not constitute a valid wakf in respect of the suit land. Therefore, the notification dated 29.04.1959 is not a conclusive proof of the fact that the suit land is a wakf property. It is for this reason probably that the Appellant Committee had never pressed the said notification into service up till 1999.

33. In Tamil Nadu Wakf Board v. Hathija Ammal (Dead) by Lrs. Etc. MANU/SC/0518/2001 : AIR 2002 SC 402, it was observed that the Wakf Board should follow the procedure as required Under Section 4, 5 and 6 or Section 27 of the Wakf Act before notifying the wakfs Under Section 5 of the Act.

34. In Madanuri Sri Rama Chandra Murthy v. Syed Jalal MANU/SC/0485/2017 : (2017) 13 SCC 174, it was observed as under:

16. 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 the 1995 Act (it was by the Board under the 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 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 its mind and only thereafter the same will be sent to the Government for notifying the same in the Gazette....

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7467-7470 of 2014

Salem Muslim Burial Ground Protection Committee  Vs.  State of Tamil Nadu and Ors.

Hon'ble Judges/Coram:

V. Ramasubramanian and Pankaj Mithal, JJ.

Author: Pankaj Mithal, J.

Decided On: 18.05.2023.

Citation: MANU/SC/0597/2023

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Can the government acquire a person's land without paying compensation on oral consent?

  In the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law. The need for written consent in matters of land acquisition proceedings, has been noted in fact, by the full court decision of the High Court in Shankar Dass (supra) itself, which is relied upon in the impugned judgment.

23. This court, in Vidya Devi (supra) facing an almost identical set of facts and circumstances – rejected the contention of ‘oral’ consent to be baseless and outlined the responsibility of the State:

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2273 OF 2022 

 SUKH DUTT RATRA & ANR. Vs STATE OF HIMACHAL PRADESH & ORS.

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Supreme court: Forcible dispossession of a person of their private property by the government without following due process of law is violative of their human right

 Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative of both their human right, and constitutional right under Article 300-A, this court allowed the appeal. We find that the approach taken by this court in Vidya Devi (supra) is squarely applicable to the nearly identical facts before us in the present case. {Para 25}

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2273 OF 2022 

 SUKH DUTT RATRA & ANR. Vs STATE OF HIMACHAL PRADESH & ORS.

 Coram: S. RAVINDRA BHAT; PAMIDIGHANTAM SRI NARASIMHA, JJ.

 Dated: April 06, 2022 

Author: S. RAVINDRA BHAT, J.

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Whether Presiding Deity or Pujari Is Owner Of Land Attached To Temple?

      The said judgment is clearly erroneous as the presiding deity of the temple is the owner of the land attached to the temple. The Pujari is only to perform puja and to maintain the properties of the deity. In fact, the Constitution Bench in a judgment reported as M. Siddiq (Dead) Through Legal Representatives v. Mahant Suresh Das and Others, (2020) 1 SCC 1 held as under:

“511. …….. A pujari is merely a servant or appointee of a shebait and gains no independent right as a shebait despite having conducted ceremonies over a period of time. All the evidence relied upon to support the claim of late Baba Abhiram Das is restricted to his having performed puja at the disputed premises and does not confer any shebaiti rights.”

27. In the ownership column, the name of the deity alone is required to be mentioned, as the deity being a juristic person is the owner of the land. The occupation of the land is also by the deity which is carried out by the servant or the managers on behalf of the deity. Therefore, the name of the manager or that of the priest is not required to be mentioned in the column of occupier as well. In Ghanshyamdas II, it was held that if the name of the Pujari is recorded in the column No. 12 i.e. column of remarks, it will not affect the rights of the Pujari so long as he is performing his functions properly and cultivating the land or getting the land cultivated through servants. Therefore, the name of the Pujari cannot be mandated to be recorded either in the column of ownership or occupancy but may be recorded in the remark’s column.

                             Supreme Court

JUSTICE HEMANT GUPTA JUSTICE A.S. BOPANNA

The STATE OF MADHYA PRADESH & ORS. Vs. PUJARI UTTHAN AVAM KALYAN SAMITI & ANR.

CIVIL APPEAL NO. 4850 OF 2021

6th September 2021

Author: HEMANT GUPTA, J.

Citation: 2021 ALL SCR (ONLINE) 406

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