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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