Whether State Government can invoke the writ jurisdiction against the action of the Wakf Board to declare the land as wakf property?

 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.

{Para 125}

(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.

Supreme Court

JUSTICE HEMANT GUPTA JUSTICE V. RAMASUBRAMANIAN

STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) Vs. A. P. STATE WAKF BOARD & ORS.

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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

JUSTICE HEMANT GUPTA JUSTICE V. RAMASUBRAMANIAN

STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) Vs. A. P. STATE WAKF BOARD & ORS.

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Whether the government can acquire land dedicated for religious purposes?

  The land dedicated for pious and religious purpose is not immune from its vesting with the State. In Khajamian Wakf Estates v. State of Madras, (1970) 3 SCC 894 the validity of the Madras Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963 (Madras Act 26 of 1963); the Madras Lease-holds (Abolition and Conversion into Ryotwari) Act, 1963 (Madras Act 27 of 1963) and the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (Madras Act 30 of 1963) was subject matter of challenge on the ground that the material provisions in those Acts are violative of Articles 14, 19(1)(f) and 31 of the Constitution. The impugned Acts were said to be providing for the acquisition by the State of the “estate” as contemplated by Article 31-A. These legislations were undertaken as a part of agrarian reform. In regard to the Inams belonging to the religious and charitable institutions, the impugned Acts did not provide for payment of compensation in a lump sum but on the other hand provision is made to pay them a portion of the compensation every year. The Constitution Bench held as under: -

“12. It was next urged that by acquiring the properties belonging to religious denominations, the Legislature violated Article 26(c) and (d) which provide that religious denominations shall have the right to own and acquire movable and immovable property and administer such property in accordance with law. These provisions do not take away the right of the State to acquire property belonging to religious denominations. Those denominations can own, acquire properties and administer them in accordance with law. That does not mean that the property owned by them cannot be acquired. As a result of acquisition they cease to own that property. Thereafter their right to administer that property ceases because it is no longer their property. Article 26 does not interfere with the right of the State to acquire property.”{Para 196}

Supreme Court

JUSTICE HEMANT GUPTA JUSTICE V. RAMASUBRAMANIAN

STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) Vs. A. P. STATE WAKF BOARD & ORS.

CIVIL APPEAL NO. 10770 OF 2016

7th February 2022

Citation: 2022 ALL SCR (ONLINE) 140

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When government can release water from Dam for religious purpose?

 A Division
Bench of this Court in the aforesaid judgment in PIL No.173 of 2013
and   other   connected   matters   had   an   occasion   to   consider   all   the
relevant laws regarding regulation of water supply in the State.  In the
said judgment, in Paragraph 188, the Division Bench has referred to
Clause 4.0 of the Maharashtra State Water Policy, 2003. Clause 4.0 of
the Maharashtra State Water Policy, 2003 reads thus:
“4.0 Priority of Water UsageWater
resources shall be allocated in accordance with
the following general principles:
(a) Domestic use for drinking, cooling, hygiene and
sanitation needs including livestock;
(b) Industrial,   commercial   use   and   agro­based
industrial use;
(c) Agriculture and hydropower;
(d) Environment and recreation uses;
(e) All other uses.”
9. In Paragraphs 190 and 191, the Division Bench proceeded
to observe thus:

“190. At highest, the use of water for Kumbhmela
and   for   other   religious   purposes   will   be
covered by the last category “e”.  Therefore,
according to  the  Water Policy of  the  State
Government,   if   sufficient   water   cannot   be
allocated for usages in categories (a) to (d)
in that order of preference, there cannot be
any allocation of water for Kumbhmela and
other   religious   purposes.    In   the   National
Water   Policy  of   2012,  in  Paragraph  1.2,  it  is
noted   that   large   parts   of   India   have   already
become water stressed as the issues related to
water   governance   have   not   been   addressed
adequately. It is noted in the said policy that the
mismanagement of water resources has led to a
critical situation in many parts of the country.
191. Needless   to   add   that   in   case   of   scarcity   or
hydrological drought, in view of Clause (c) of
Section 11 of the said Act of 2005, the water
cannot be released from the reservoirs by the
State   for   religious   ceremonies   or   religious
objects   without   the   Regulatory   Authority
deciding   the   issue   of   priority   of   equitable
distribution   of   water.    Therefore,  in  case  of
scarcity or hydrological drought, the State is
not   entitled   to   release   water   from   the
reservoirs   for   such   purposes   without
adjudication being made by the Regulatory
Authority under Clause (c) of Section 11 of
the said Act of 2005.”
                                                          (emphasis added)
10. The Division Bench has categorically held that if sufficient
water cannot be allocated for usages in Categories (a) to (d) in that
order of preference, there cannot be any allocation in those categories
of water for Kumbhmela or for other religious purposes.  Further, it is
held that in case of scarcity or hydrological drought, the State is not
entitled   to   release   water   from   the   reservoirs   in   the   State   for   such
religious   purposes   without   an   adjudication   being   made   by   the

Regulatory Authority under Clause (c) of Section 11 of the said Act of
2005.
11. We have carefully perused the findings recorded by the
Chief Secretary.   In Paragraph 15 of the impugned order, the Chief
Secretary has referred to the categories (a) to (e) which are quoted
above.  In Paragraph 16, he observed that 60 to 70 lakhs pilgrims were
likely to participate in Shahi snan in the Kumbh­mela on 29th  August
2015, 13th September 2015 and 18th September 2015. Therefore, 4.50
TMC water was proposed to be released from Gangapur Dam.   He
observed that if the water was not released, there might have been a
possibility   of   epidemic   and   serious   hygiene   problems.     He   has,
therefore, come to a conclusion that the case was governed by category
(a).  In our view, even assuming that there was a possibility of  law and
order problem being created if  sufficient water was not released for the
Kumbh­mela,   by  no  stretch   of   imagination,  the   release   of   water  to
prevent   such   law   and   order   situation   was   covered   by   any   of   the
categories (a) to (d) of clause 4.0 of the State Water Policy. Though it is
claimed that the water actually released for Kumbhmela for Shahi snan
(holy bath) was less than what was planned, the fact remains that in
the year 2015­-2016 when there was a hydrological drought, the water
was released  by the State Government for the benefit of Shahi snan in
breach of its own water policy.  We are not on the issue of release of

water for drinking purposes for the benefit of pilgrims as it covered by
category (a).   By no stretch of imagination, the release of water for
Shahi snan will be covered by Category (a).  Therefore, release of water
for Shahi snan was completely illegal.  The State was bound by its own
water policy and the State could not have acted contrary to its own
binding policy.   We are not able to accept the strong justification tried
to be offered by the learned Government Pleader for supporting the
impugned order. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
PUBLIC INTEREST LITIGATION NO.154 OF 2015
Hiralal Motilal Desarda. 
Vs
The State of Maharashtra and Others

CORAM  : A.S. OKA & A.A.SAYED, JJ 

DATED    : 22ND DECEMBER 2016

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