SMT. R. BHAGYAMMA vs KARNATAKA STATE BOARD OF WAKFS
- Court
- Karnataka High Court
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CNR: KAHC010531062013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 5 DAY OF NOVEMBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 56649 OF 2013 (GM-WAKF)
BETWEEN
1. SMT. R. BHAGYAMMA
W/O LATE K S CHIKKALINGAPPA
AGED ABOUT 62 YEARS
2. SMT K C SHASHIKALA
D/O LATE K S CHIKKALINGAPPA
W/O N RAVI KUMAR
AGED ABOUT 39 YEARS
TH
BOTH ARE R/A NO.655, 4 MAIN
SRINAGAR, RAMANJANEYA ROAD
BANGALORE-560050
...PETITIONERS
(BY SRI: D.R. RAVISHANKAR., SR. COUNSEL FOR
SRI. SUNIL KUMAR PATEL., ADVOCATE)
AND
1. KARNATAKA STATE BOARD OF WAKFS
CONSTITUTED UNDER KARNATAKA WAKF ACT 1995
OFFICE OF THE DISTRICT WAKF ADVISORY
COMMITTEE
BANGALORE(URBAN) DISTRICT
ND
NO.16, 2 FLOOR
HAMEED SHAH COMPLEX
CUBBONPET, BANGALORE-560002
REPRESENTED BY ITS WAKF OFFICER
2. KARNATAKA STATE BOARD OF WAKFS
DARUL AWKAF
NO.6, CUNNINGHAM ROAD
BANGALORE-560052
Digitally Signed By:
SURAJ GOVINDA RAJ
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REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER
3. THE PRESIDENT
JAMIA MASJID COMMITTEE
MOHAMMEDSAB PALYA
MASJID COMPLEX, VIDYARANYAPURA POST
YELAHANKA HOBLI
BANGALORE NORTH-560097
4. THE STATE OF KARNATAKA
MINORITY WELFARE DEPARTMENT
VIKASA SOUDHA,
BENGALURU-560001.
REP BY ITS SECRETARY
5. THE JOINT COMMISSIONER
YELAHANKA ZONE,
BBMP, BYATARAYANAPURA,
BENGALURU-560092.
6. THE COMMISSIONER OF POLICE,
BENGALURU CITY,
INFANTRY ROAD,
BENGALURU-560001.
(RESPONDENTS 4 TO 6 ARE IMPLEADED
VIDE COURT ORDER DATED 25.10.2024)
…RESPONDENTS
(BY SMT. ANURADHA S.R., SR. COUNSEL FOR
SRI. P.S. MALIPATIL., ADVOCATE FOR R1 & R2;
SRI. RASHEED KHAN., ADVOCATE FOR R3;
V/O DATED 25.10.2024
SRI. B.S. KARTHIKEYAN., ADVOCATE FOR R5;
SRI. MOHAMMED JAFAR SHAH., AGA FOR R4 & R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE
RECORDS FROM THE R2 & R3 IN RESPECT OF EARLIER NOTIFICATION
ISSUED IN THE YEAR 1965 & SUBSEQUENT DEVELOPMENTS SO ALSO THE
NOTIFICATIONS ISSUED BY THE WAY OF CORRIGENDUM.
AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING BEEN
RESERVED FOR ORDERS ON 18.08.2026, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CAV ORDER
1. The petitioners are before this Court seeking for the
following reliefs:
a. To call for the entire records from the Respondents
No. 2 and 3 in respect of earlier Notification issued in the
year 1965 and subsequent developments do also the
Notification issued by way of corrigendum.
b. To issue Writ of Certiorari and Quash the Notification
at
Annexure-H1 issued under revised corrigendum bearing
No. KBW/MSC/35/2009-10 dated 08.07.2010 in respect
of land bearing Sy. No. 56/1A measuring an extent of 1
Acre 12 Guntas and consequently to declare that the
Respondents No. 2 and 3 have no manner in respect of
Petitioners' land bearing Sy.No. 56/1A an extent of 1
Acre 12 Guntas detailed in the schedule.
c. To issue a writ of certiorari and quash the Notification
Prayers-'c' & 'd' are dtd:17.10.2019, bearing No. RD
115/BHUDAA 2019 issued by the Govt of Karnataka/4th
Respondent vide. Annexure-L notifying the land in
question bearing Sy. No. 56/1A of Jarakabandekaval
village, Yelahanka Hobli, Yelahanka Taluk (then
Bengaluru North Taluk), Bengaluru District measuring to
an extent of 1 Acre 12 Guntas and consequently declare
that the Respondents have no manner of right
whatsoever with respect to the Petitioners' land as
detailed in the schedule.
d. To issue a direction in the nature of Writ of Mandamus
against the Respondents, directing them to remove all
the illegal encroachments made (including the burials) in
the private land belonging to the Petitioners in Sy.No.
56/1A of
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Jarakabandekaval village, Yelahanka Hobli, Yelahanka
Taluk (then Bengaluru North Taluk), Bengaluru District
measuring to an extent of 1 Acre 12 Guntas or in the
alternative permit the Petitioners to remove the illegal
encroachments made (including the burials) in the
private land belonging to the Petitioners in Sy.No. 56/1A
of Jarakabandekaval village, Yelahanka Hobli, Yelahanka
Taluk (then Bengaluru North Taluk), Bengaluru District
measuring to an extent of 1 Acre 12 Guntas with the
assistance of Jurisdictional Police.
e. To issue appropriate writ or direction against the
Respondents No. 2 and 3 not to trespass or do any
activities in the land bearing Sy. No. 56/1A formed with
sites so as to protect and safeguard the properties.
f. To grant such other relief or reliefs as this Hon'ble
Court deems fit and proper in the circumstances of the
case.
g. Cost of the proceedings.
2. Petitioners claim that Sri.K.S.Chikkalingappa and
Sri.N.Narasimhaiah were the owners of the land in Sy
No.56/1A situated at Jarakabande Kaval, Yelahanka
Hobli, Bangalore North Taluk, to an extent of 1 acre
12 guntas and acquired the property under a
registered sale deed dated 04.02.1981.
Subsequently, they sought for change of land use
from agriculture to non-agricultural purposes. The
Deputy Commissioner granted such permission in
respect of Sy.No.56/1A vide order bearing No.
B.DIS.ALN.SR(N) 108/82-83 dated 20.06.1983. The
said Chikkalingappa expired on 26.12.2000, leaving
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behind petitioner No. 1, wife, and petitioner No. 2,
daughter, to succeed to his estate. It is claimed that
in the aforesaid land they had formed a layout
consisting of various sites.
3. A gazette notification having been published on
07.06.1965, notifying the land in Sy.No.55/1, 55/2 of
Chikkabettahalli as Wakf land. A corrigendum had
been issued on 23.02.2010 followed by a gazette
Public Notification on 05.08.2010 under caption
revised corrigendum bearing No.KBW/MSC/35/2009-
10 dated 08.07.2010 including altogether new
Sy.No.56 as wakf land. In furtherance of which, it is
alleged that the said land was used as a graveyard.
It is this corrigendum which is challenged in the
present proceedings.
4. By way of order dated 13.12.2013, the parties were
directed to maintain status quo with regard to
possession and thereafter the matter was adjourned
from time to time. Subsequently, an amendment
application came to be filed on 25.09.2023, which
was directed to be considered along with the main
arguments vide order dated 25.09.2023.
5. In the meanwhile, a notification having been issued
on 17.10.2019, an amendment application in IA
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No.1/24 had been filed challenging the said
notification which came to be allowed on 25.06.2024.
Subsequently, certain other government entities
were brought on record as party respondents vide
order dated 25.10.2024.
6. On 15.07.2026, on a joint submission made by the
counsel for the petitioners and counsel for the Wakf
Board, on which basis a survey of the lands in
Sy.No.55, 56 and 57 of Jarakbhande Kaval Village,
Bangalore North Taluk was directed to be conducted
to demarcate the boundaries of the primary survey
numbers and sub numbers and draw up a detailed
survey sketch and mark the location of each of the
tombstones in any of the other survey numbers and
to calculate the area covered by the
tombstones/kabristan/graveyard as also demarcate
and calculate the area over which there is no
tombstone/kabristan/graveyard along with
photographs and videographs of the entire process.
7. In pursuance thereof, a report has been submitted
on 06.08.2026. It is in that background that the
matter was taken up for hearing.
8. Sri. Sunil Kumar Patel, learned counsel for the
petitioners would submit that:
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8.1. As per the sale deed dated 04.02.1981, the
land bearing Sy.No.56/1A is situated at
Jarakabande Kaval, Yelahanka Hobli, Bangalore
North Kaval, measuring 1 acre 12 hectares
bounded on the east by Anchipura Village
boundary, west by Imam Sabi land, north by
Masidi land and south by Malik Sab's land was
sold.
8.2. His submission is that there is no power to
issue a corrigendum under Section 5(2) of the
Wakf Act, 1995, as it is required that before
any notification is issued it is to be preceded by
a detailed survey and compliance with the
procedure under Section 4 of the Wakf Act. He
submits that without such a detailed survey
under Section 4, a corrigendum could not have
been issued. He submits that the aforesaid land
belonging to private parties could not be
included by way of a corrigendum. His
submission is that the land in Survey No.56/1A
was all along a private property and was never
a wakf land. The land has also been converted
in the name of the earlier owner, i.e. the father
of the petitioner. Hence, the issuance of
corrigendum having civil consequences without
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following the procedure under Sections 4, 5 and
6 of the Wakf Act, the corrigendum could not
have been issued without there being a finding
as regard the history of any dedication of the
property.
8.3. The corrigendum could not have been issued
after 45 years of the original notification on
07.06.1965. The corrigendum is a mischievous
act and is expropriatory in nature.
8.4. He relies on the decision of the Hon’ble Apex
Court in the case of State of Andhra Pradesh
vs. Andhra Pradesh State Wakf Board and
others [(2022) 20 SCC 383], more particularly
Paragraphs 158 to 174, which are reproduced
hereunder for easy reference:
158. The test to determine as to whether an institution
discharges quasi-judicial function came up for
consideration before this Court in a judgment reported
as Indian National Congress. This Court held that if law
requires that an authority before arriving at a decision
must make an inquiry, such a requirement of law makes
the authority a quasi-judicial authority. This Court held
as under : (SCC p. 700, paras 25 & 27)
“25. Applying the aforesaid principle, we are of the view
that the presence of a lis or contest between the
contending parties before a statutory authority, in the
absence of any other attributes of a quasi-judicial
authority is sufficient to hold that such a statutory
authority is quasi-judicial authority. However, in the
absence of a lis before a statutory authority, the
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authority would be quasi-judicial authority if it is
required to act judicially.
*
27. What distinguishes an administrative act from a
quasi-judicial act is, in the case of quasi-judicial
functions under the relevant law the statutory authority
is required to act judicially. In other words, where law
requires that an authority before arriving at a decision
must make an inquiry, such a requirement of law makes
the authority a quasi-judicial authority.”
159. In a Constitution Bench judgment reported as
Province of Bombay v. Kusaldas S. Advani , this Court
deduced principles as to when an authority can be said
to exercising quasi-judicial functions. It was held that
the absence of two parties is not decisive in taking the
act of the authority out of the category of quasi-judicial
act if the authority is nevertheless required by the
statute to act judicially. This Court held as under : (SCC
pp. 608-609, paras 80-81)
“80. What are the principles to be deduced from the two
lines of cases I have referred to? The principles, as I
apprehend them, are:
80.1. (i) *
80.2. (ii) that if a statutory authority has power to do
any act which will prejudicially affect the subject, then,
although there are not two parties apart from the
authority and the contest is between the authority
proposing to do the act and the subject opposing it, the
final determination of the authority will yet be a quasi-
judicial act provided the authority is required by the
statute to act judicially.
81. In other words, while the presence of two parties
besides the deciding authority will prima facie, and in the
absence of any other factor impose upon the authority
the duty to act judicially, the absence of two such parties
is not decisive in taking the act of the authority out of
the category of quasi-judicial act if the authority is
nevertheless required by the statute to act judicially.”
160. This Court in a judgment reported as State of H.P.
v. Mahendra Pal [State of H.P. v. Mahendra Pal, (1999) 4
SCC 43] held that a quasi-judicial function stands
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midway between a judicial and an administrative
function. The primary test is as to whether the authority
alleged to be a quasi-judicial one, has any express
statutory duty to act judicially in arriving at the decision
in question. If the reply is in the affirmative, the
authority would be deemed to be quasi-judicial, and if
the reply is in the negative, it would not be. It was held
as under : (SCC pp. 56-57, para 9)
“9. It follows, therefore, that an authority is described as
quasi-judicial when it has some of the attributes or
trappings of judicial functions, but not all. This Court in
Province of Bombay v. Kusaldas S. Advani [Province of
Bombay v. Kusaldas S. Advani, 1950 SCC 551 : 1950
SCR 621] dealt with the actions of the statutory body
and laid down tests for ascertaining whether the action
taken by such a body was a quasi-judicial act or an
administrative act. The Court approved the celebrated
definition of the quasi-judicial body given by Atkin, L.J.,
as he then was in R. v. Electricity Commissioners [R. v.
Electricity Commissioners, (1924) 1 KB 171 : 130 LT 164
(CA)] in which it was held : (KB p. 205)
‘… Whenever any body of persons having legal authority
to determine questions affecting rights of subjects, and
having the duty to act judicially act in excess of their
legal authority they are subject to the controlling
jurisdiction of the King's Bench Division exercised in
these writs.’
The aforesaid definition was accepted as correct in R. v.
London County Council and many subsequent cases both
in England and in India. Again this Court in Radeshyam
Khare v. State of M.P. relying upon its earlier decision
held : (SCC OnLine SC paras 11-12)
‘11. … It will be noticed that this definition insists on
three requisites each of which must be fulfilled in order
that the act of the body may be said to be quasi-judicial
act, namely, that the body of persons : (1) must have
legal authority, (2) to determine questions affecting the
rights of parties, and (3) must have the duty to act
judicially. Since a writ of certiorari can be issued only to
correct the errors of a court or a quasi-judicial body, it
would follow that the real and determining test for
ascertaining whether an act authorised by a statute is a
quasi-judicial act or an administrative act is whether the
statute has expressly or impliedly imposed upon the
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statutory body the duty to act judicially as required by
the third condition in the definition given by Atkin, L.J.…
12. Relying on Paras 114 and 115 of Halsbury's Laws of
England, 3rd Edn., Vol. 11 at pp. 55-58 and citing the
case of R. v. Manchester Legal Aid Committee learned
counsel for the appellants contends that where a statute
requires a decision to be arrived at purely from the point
of view of policy or expediency the authority is under no
duty to act judicially. He urges that where, on the other
hand, the order has to be passed on evidence either
under an express provision of the statute or by
implication and determination of particular facts on
which its jurisdiction to exercise its power depends or if
there is a proposal and an opposition the authority is
under a duty to act judicially. As stated in Para 115 of
Halsbury's Laws of England, Vol. 11 at p. 57 the duty to
act judicially may arise in widely differing circumstances
which it would be impossible to attempt to define
exhaustively. The question whether or not there is a
duty to act judicially must be decided in each case in the
light of the circumstances of the particular case and the
construction of the particular statute with the assistance
of the general principles laid down in the judicial
decisions. The principles deducible from the various
judicial decisions considered by this Court in Kusaldas S.
Advani at p. 725 (of SCR) : (at p. 260 of AIR) were thus
formulated.…’ ”
161. This Court in a judgment reported at Kranti
Associates [Kranti Associates (P) Ltd. v. Masood Ahmed
Khan, (2010) 9 SCC 496 : (2010) 3 SCC (Civ) 852] held
as under : (SCC pp. 510-11, para 47)
“47. Summarising the above discussion, this Court
holds:
(a) In India the judicial trend has always been to record
reasons, even in administrative decisions, if such
decisions affect anyone prejudicially.
*
(d) Recording of reasons also operates as a valid
restraint on any possible arbitrary exercise of judicial
and quasi-judicial or even administrative power.
*
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(f) Reasons have virtually become as indispensable a
component of a decision-making process as observing
principles of natural justice by judicial, quasi-judicial and
even by administrative bodies.”
162. In respect to the provisions of Section 32 of the
1995 Act, a Division Bench of the Kerala High Court in a
judgment reported as Ezhome Sunni Valiya Juma Masjid
v. Kerala Waqf Board held that when the Wakf Board is
called upon to decide a lis which falls within its
jurisdiction and has to be done based on the materials
made available before it, after hearing the parties and its
decision has far-reaching repercussion on the rights of
the parties, it is a quasi-judicial function. It was held as
under : (SCC OnLine Ker para 10)
“10. The aforementioned provisions dealing with the
powers and duties of the Waqf Board and other related
provisions under the Act would reveal there may be
many acts which may be done by the Board. Among
them, some are obviously administrative in nature. But,
when the Board is called upon to decide a lis which falls
within its jurisdiction and has to be done based on the
materials made available before it, after hearing the
parties and its decision has far-reaching repercussion on
the rights of the parties, it has a quasi-judicial function.
(See the decision in Puthucode Juma — Ath Committee
v. Abdul Rahiman). A quasi-judicial function is an
administrative function which the law requires to be
exercised in some respects as if it were judicial. It is
subject to some measure of judicial procedure. As
regards quasi-judicial functions, they cannot be
delegated unless the authority concerned is enabled to
do so expressly or by necessary implication. The general
principle is that where any kind of a decision on a lis has
to be made, it must be made by the authority
empowered by the statute concerned and by no one
else. We will deal with the same further, a little later.”
163. Thus, we find that the power of the Board to
investigate and determine the nature and extent of
wakf is not purely an administrative function. Such
power has to be read along with Section 40 of the Act
which enjoins “a Wakf Board to collect information
regarding any property which it has reason to believe to
be wakf property and to decide the question about the
nature of the property after making such inquiry as it
may deem fit”. The power to determine under Section
32(2)(n) is the source of power but the manner of
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exercising that power is contemplated under Section 40
of the 1995 Act. An inquiry is required to be conducted if
a Board on the basis of information collected finds that
the property in question is a wakf property. An order
passed thereon is subject to appeal before the Wakf
Tribunal, after an inquiry required is conducted in terms
of sub-section (1) of Section 40. Therefore, there
cannot be any unilateral decision without
recording any reason that how and why the
property is included as a wakf property. The finding
of the Wakf Board is final, subject to the right of appeal
under sub-section (2). Thus, any decision of the Board is
required to be as a reasoned order which could be tested
in appeal before the Wakf Tribunal.
164. Therefore, the Wakf Board has power to determine
the nature of the property as wakf under Section
32(2)(n) but after complying with the procedure
prescribed as contained in Section 40. Such procedure
categorically prescribes an inquiry to be conducted. The
conduct of inquiry presupposes compliance of the
principles of natural justice so as to give opportunity of
hearing to the affected parties. The proceedings
produced by the Wakf Board do not show any inquiry
conducted or any notice issued to either of the affected
parties. Primarily, two factors had led the Wakf Board to
issue the errata notification, that is, order of the Nazim
Atiyat and the second survey report. Both may be
considered as material available with the Wakf Board but
in the absence of an inquiry conducted, it cannot be said
to be in accordance with the procedure prescribed under
Section 40 of the 1995 Act.
165. Since there is no determination of the fact
whether the property in question is a wakf
property after conducting an inquiry in terms of
Section 40(1) of the 1995 Act, the errata
notification cannot be deemed to be issued in
terms of Section 32 read with Section 40 of the
1995 Act. Such determination alone could have
conferred right on the affected parties to avail the
remedy of appeal under Section 40 of the 1995 Act.
166. The reliance on the proviso to Section 40(3) of the
1995 Act, contemplating notice to the registered trust or
society in case the Board has any reason to believe that
any property is wakf and is registered under any of the
Acts is absolutely misconceived. These provisions deal
with an altogether different situation. A trust or society
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is already registered but if the Board finds it to be wakf,
the statute contemplates notice to the authority. It does
not mean that such trust or society is not required to be
heard. The hearing to trust or society would also be as
per the principles of natural justice.
167. The argument in support of the Errata Notification
dated 13-3-2006 is that it is traceable to the powers
conferred on the Wakf Board under Section 5 of the
1995 Act. The exercise of the publication of notification
is the power conferred on the Wakf Board. Therefore, the
fact that second survey report was not submitted to the
State Government was inconsequential as it was only a
ministerial action. Once the Board had the power to
publish notification after perusing the various
documents, the same could not be said to be illegal only
for the reason that the report was not submitted to the
State Government as contemplated by sub-section (1) of
Section 5 of the 1995 Act.
168. The argument raised by Mr Ahmadi that the
notification is in terms of Section 5 of the 1995 Act is not
tenable. It is an admitted case that the second survey
report was not submitted to the State Government and
such report has not even been forwarded by the
Government to the Wakf Board. The Wakf Board may
have a right to requisition of any document in
terms of power conferred under Section 105 of the
1995 Act, but if a procedure is prescribed for
issuance of a notification, it could be issued only in
the manner prescribed and not in any other
manner. Reference be made to the judgment of this
Court reported as Babu Verghese v. Bar Council of
Kerala [Babu Verghese v. Bar Council of Kerala, (1999) 3
SCC 422] wherein this Court held as under : (SCC pp.
432-33, paras 31-32)
“31. It is the basic principle of law long settled that if the
manner of doing a particular act is prescribed under any
statute, the act must be done in that manner or not at
all. The origin of this rule is traceable to the decision in
Taylor v. Taylor which was followed by Lord Roche in
Nazir Ahmad v. King Emperor who stated as under :
(Nazir Ahmad case , SCC OnLine PC)
‘… where a power is given to do a certain thing in a
certain way, the thing must be done in that way or not
at all.’
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32. This rule has since been approved by this Court in
Rao Shiv Bahadur Singh v. State of Vindhya Pradesh
[Rao Shiv Bahadur Singh v. State of Vindhya Pradesh,
(1954) 1 SCC 296 : 1954 SCR 1098 : AIR 1954 SC 322]
and again in Deep Chand v. State of Rajasthan. These
cases were considered by a three-Judge Bench of this
Court in State of U.P. v. Singhara Singh [State of U.P. v.
Singhara Singh, 1963 SCC OnLine SC 23 : AIR 1964 SC
358 : (1964) 1 Cri LJ 263 (2)] and the rule laid down in
Nazir Ahmad case was again upheld. The rule has since
been applied to the exercise of jurisdiction by courts and
has also been recognised as a salutary principle of
administrative law.”
169. A Constitution Bench in a judgment reported as CIT
v. Anjum M.H. Ghaswala reiterated that when a statute
vests certain power in an authority to be exercised in a
particular manner, then the said authority has to
exercise the same only in the manner prescribed by the
statute itself. It was held as under : (SCC p. 644, para
27)
“27. Then it is to be seen that the Act requires the Board
to exercise the power under Section 119 in a particular
manner i.e. by way of issuance of orders, instructions
and directions. These orders, instructions and directions
are meant to be issued to other income tax authorities
for proper administration of the Act. The Commission
while exercising its quasi-judicial power of arriving at a
settlement under Section 245-D cannot have the
administrative power of issuing directions to other
income tax authorities. It is a normal rule of construction
that when a statute vests certain power in an authority
to be exercised in a particular manner then the said
authority has to exercise it only in the manner provided
in the statute itself. If that be so, since the Commission
cannot exercise the power of relaxation found in Section
119(2)(a) in the manner provided therein it cannot
invoke that power under Section 119(2)(a) to exercise
the same in its judicial proceedings by following a
procedure contrary to that provided in sub-section (2) of
Section 119.”
170. Therefore, we are unable to agree with Mr Ahmadi
that since it was only a ministerial part of submission of
the second survey report to the State Government,
therefore, the Board had the jurisdiction to publish
notification under Section 5.
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171. The question now to be examined is whether the
Board could issue the errata notification after a lapse of
17 years from the date of first notification i.e. 9-2-1989.
The exercise leading to the notification started with a
letter from Syed Safiullah Hussaini, Mutawalli on 30-1-
2005. He is the mutawalli mentioned in the first
notification published in the year 1989. Since the
notification was issued with him as mutawalli,
then his inaction for 17 long years speaks volumes
of his bona fide in initiating the process to include
the large area of land as wakf.
172. We would need to examine as to what is the scope
and meaning of the word “errata”. “Errata” is a term of
French origin which means a thing that should be
corrected. It means a mistake in printing or writing.
Reference may be made to a judgment reported as
Parvati Devi v. State of U.P. It was held as under : (SCC
OnLine All paras 20-21, 23-25 & 27)
“20. The word “Erratum” (French) means a mistake in
printing or writing; a note drawing attention to such a
mistake. A list of mistakes added at the end of a book.
21. The word “Errata” is a word of French origin and
means “a thing that should be corrected”. After a book
has been printed, it often happens that certain mistakes
are found to have been overlooked. In later editions, it is
usual to insert, a list of such mistakes and to point out
the necessary corrections. These are called “corrigenda”.
*
23. In Judicial Dictionary by Justice L.P. Singh and
Majumdar, 2nd Edn., p. 552, while quoting the following
passage in Asom Rajyik Udyog Karmi Sangha v. State of
Assam [Asom Rajyik Udyog Karmi Sangha v. State of
Assam, 1995 SCC OnLine Gau 140 : (1996) 1 Gau LR
236] , Gau LR at p. 241, the word “corrigendum” has
been defined as follows:
‘The dictionary meaning of the word “corrigendum”
means things to be correct. It means there must be an
error and there is a necessity to amend and rectify it. In
the garb of corrigendum, a rule cannot be altered and or
changed, but that is what appears to have been done in
the instant case. In order to alter or modify a rule the
same procedure adopted in making of the rule have to
be gone through.’
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24. The meaning and application of the word
“corrigendum” has been considered by the Courts time
and again. In CST v. Dunlop India Ltd. this Court held
that corrigendum is issued to correct a mistake in the
notification, therefore, would relate back to the date of
issuance of the original notification.
25. In Piara Singh v. State of Punjab, the Hon'ble
Supreme Court held that there is no bar on issuing the
corrigendum or “more corrigenda” for correcting the
arithmetical error.
*
27. In view of the above, the legal position can be
summarised that a corrigendum can be issued only to
correct a typographical error or omission therein.
However, it is meant only to correct
typographical/arithmetical mistake. It cannot have the
effect of law nor it can take away the vested right of a
person nor it can have the effect of nullifying the rights
of persons conferred by the law.”
173. We find that in the facts of the present case, the
errata notification is nothing but a fresh notification
altogether. Errata is a correction of a mistake. Hence,
only arithmetical and clerical mistakes could be
corrected and the scope of the notification could
not be enlarged by virtue of an errata notification.
As against 5506 sq yd of land notified as wakf property
in the year 1989, large area of 1654 acres 32 guntas of
land could not be included under the guise of an errata
notification as it is not a case of clerical or arithmetical
mistake but inclusion of large area which could not be
done without conducting a proper inquiry either under
Section 32(2)(n) read with Section 40 or on the basis of
survey report which was called by the State Government
by appointing a Survey Commissioner.
174. It may be noticed at this stage that the second
survey report as called by the Wakf Board from the
Survey Commissioner has many interpolations visible to
the naked eye which creates a doubt on the correctness
of the report which could form as a reasonable base to
confer jurisdiction on the Wakf Board to include such
land as a wakf land.
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8.5. By relying on Andhra Pradesh State Wakf
Board , his submission is that where a statutory
authority is empowered to determine questions
affecting the rights of parties, and the exercise
of such power entails an inquiry into the
relevant facts and materials, the authority is
required to discharge its functions in a quasi-
judicial manner, in accordance with the
applicable statutory procedure and the
principles of natural justice. The decision
further emphasises that such determination
must be supported by cogent reasons and
cannot be made unilaterally, without affording
an effective opportunity of hearing to the
parties likely to be affected. It is also submitted
that where the statute prescribes a particular
procedure for the exercise of a power, the
authority is bound to act in the manner so
prescribed and cannot circumvent the same by
resorting to an alternative procedure. Further, a
corrigendum or errata can be employed only to
rectify a clerical, typographical or arithmetical
error and cannot be utilised to effect a
substantive alteration or enlargement of the
original order or notification, particularly where
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such alteration affects vested rights or
prejudicially alters the rights of the persons
concerned. On the strength of the aforesaid
principles, it is contended that the impugned
action, insofar as it has been undertaken
without the requisite inquiry, compliance with
the prescribed procedure and observance of the
principles of natural justice, or has resulted in a
substantive alteration under the guise of a
mere correction, cannot be sustained in law.
8.6. He relies on the decision of the Hon’ble Apex
Court in the case of Salem Muslim Burial
Ground Protection Committee vs. State of
Tamil Nadu & others [(2023) 16 SCC 264],
more particularly Paragraphs 25 to 28 and 31 to
35, which are reproduced hereunder for easy
reference:
25. Under Muslim law, a wakf can be created in
several ways but primarily by permanent
dedication of any movable and immovable property
by a person professing Islam for any purpose
recognised by Muslim law as pious, religious or
charitable purpose and in the absence of such
dedication, it can be presumed to have come into
existence by long use.
26. Ordinarily, a wakf is brought into existence by any
express dedication of movable or immovable property for
religious or charitable purpose as recognised by Muslim
Law. Once such a dedication is made, the property
sought to be dedicated gets divested from the wakif i.e.
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the person creating or dedicating it and vests in the
Almighty Allah. The wakf so created acquires a
permanent nature and cannot be revoked or rescinded
subsequently. The property of the wakf is unalienable
and cannot be sold or transferred for private purpose.
27. The dedication resulting in the creation of a
wakf may at times in the absence of any express
dedication may also be reasonably inferred from
the facts and circumstances of the case such as
long usage of the property as a wakf property
provided it has been put to use for religious or
public charitable purposes. In this regard, reference
may be had to the Constitution Bench decision of this
Court in M. Siddiq (Ram Janmabhumi Temple-5 J.) v.
Suresh Das [M. Siddiq (Ram Janmabhumi Temple-5 J.)
v. Suresh Das, (2020) 1 SCC 1] .
28. In the case at hand, there is no iota of
evidence from the very inception as to any express
dedication of the suit land for any pious, religious
or charitable purpose by anyone professing Islam.
Therefore, on the admitted facts, the wakf by dedication
of the suit land is ruled out.
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
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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
29-4-1959 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 T.N. Wakf Board v. Hathija Ammal [T.N. Wakf
Board v. Hathija Ammal, (2001) 8 SCC 528 : AIR 2002
SC 402] , it was observed that the Wakf Board should
follow the procedure as required under Sections 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
[Madanuri Sri Rama Chandra Murthy v. Syed Jalal,
(2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602] , it was
observed as under : (SCC p. 185, para 16)
“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.”
35. 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
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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 A.P.
v. A.P. Wakf Board [State of A.P. v. A.P. Wakf Board,
(2022) 20 SCC 383 : 2022 SCC OnLine SC 159] ,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.
8.7. By relying Salem Muslim Burial Ground
Protection Committee, his submission is that
a property cannot be treated as wakf property
merely on the basis of a notification published
in the Official Gazette, in the absence of
material establishing its dedication for a
purpose recognised by Muslim law or its long-
standing use for religious or public charitable
purposes, as the case may be. He further
submits that, where the claim of wakf is
founded upon a statutory survey and
notification, compliance with the procedure
prescribed under the applicable provisions of
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the Wakf Act, including the requisite survey,
inquiry, preparation and scrutiny of the report,
and due application of mind by the competent
authorities, is a prerequisite to a valid
declaration of the property as wakf property.
The mere publication of a notification in the
Official Gazette does not, by itself, constitute
conclusive proof of the wakf character of the
property, particularly where compliance with
the prescribed statutory procedure is not
established. It is, therefore, contended that the
nature and character of the property must be
determined on the basis of legally admissible
material and in accordance with the procedure
prescribed by law, and that a notification issued
without compliance with the mandatory
statutory requirements cannot, by itself,
conclusively establish that the property in
question is wakf property.
8.8. He relies on the decision of Hon’ble Apex Court
in the case of Madanuri Sri Rama Chandra
Murthy vs. Syed Jalal [(2017) 13 SCC 174],
more particularly Paragraphs 11, 15 to 17 and
20, which are reproduced hereunder for easy
reference:
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11. A bare reading of the aforequoted provisions
(relevant provisions for the purpose of this matter)
contained in the 1954 Act and the 1995 Act, makes it
manifestly clear that the provisions, which are relevant
for this case are almost in pari materia with each other.
15. The overall view of the aforementioned provisions
contained in the Wakf Act, 1954 and the Wakf Act, 1995
make it evident that even under the 1954 Act, as in the
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 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 the 1995 Act, the Wakf
Board after examining the report forwards it back to the
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 waqaf
properties while updating the revenue records under
sub-section (3) of Section 5 of the 1995 Act.
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. Since
the list is prepared and published in the Official Gazette
by following the 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
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required to be considered by the State Government as
well as the 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, the Surveyor's Report
merges with the gazette notification published under
Section 5 of the Wakf Act.
17. As held by the Tribunal as well as the High Court,
the property in question does not find place in the
gazette notification published 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 28-6-1962 after
the lapse of about 50 years i.e. in the year 2013 by filing
the present suit.
20. 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 property. Such non-
inclusion was never questioned by any person including
the Wakf Board. The Board has not exercised jurisdiction
under Section 27 of the 1954 Act and Section 40 of the
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.
8.9. By relying on Syed Jalal , his submission is that
the determination and notification of a property
as wakf property must be preceded by a valid
survey, a formal inquiry into the nature and
character of the property, preparation of the
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survey report and due application of mind by
the competent statutory authorities in
accordance with the procedure prescribed
under the applicable Wakf Act. The survey
report and the consequential notification are
required to be considered in the context of the
statutory process culminating in the publication
of the list of auqaf in the Official Gazette. He
further submits that the inclusion or non-
inclusion of a property in the notified list has
legal consequences and that any dispute
concerning such inclusion or non-inclusion must
be raised before the competent forum within
the period prescribed by law. The aforesaid
decision also recognises that, where a property
does not find place in the list of wakfs published
in the Official Gazette and such non-inclusion
has not been challenged in accordance with the
statutory mechanism, a belated challenge
cannot be sustained in disregard of the
applicable statutory provisions and limitation.
Accordingly, it is contended that the claim that
the property in question constitutes wakf
property must be examined with reference to
the statutory survey, the relevant survey
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report, the Gazette notification and the
applicable provisions governing the
determination of disputes concerning the
inclusion of the property in the list of wakfs.
8.10. He relies on the judgment of Co-ordinate Bench
of this Court in the case of Nishat Kasar &
another vs. State of Karnataka & others
[(2023) SCC OnLine KAR 999], more
particularly Paragraphs 28 to 58 and 60, which
are reproduced hereunder for easy reference:
28. An overview of the statutory provisions relating to
the publication of the list of Wakfs would be required to
answer this question.
29. Chapter-II of the Act provides for survey of wakfs. S.
4 of the Act contemplates that the State is to appoint a
Commissioner for making a survey of wakf properties
existing in the State and the Commissioner is required,
after making such enquiry, (as he may consider
necessary) to submit a report in respect of wakf
properties which are existing as on the date of
commencement of the Act. The report is required to
contain the specified particulars.
30. Rule 3 of the Karnataka Wakf Rules, 1964 (for
brevity, hereinafter referred to as “the Rules”)
contemplates that the Commissioner apart from other
details is also required to furnish the description of the
immovable properties showing the village or town where
the properties situate along with municipal or survey
number, area, description of the tenure and the
estimated value of the properties.
31. The Commissioner is thereafter required to submit a
report to the Government and the Government under S.
5 of the Act is required to forward a copy of the same to
the Board and the Board is required to examine the
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report and publish, in the Official Gazette, a list of wakfs
existing in the State containing such particulars as may
be prescribed.
32. Rule 4 of the Rules mandates that apart from other
particulars, the details of the wakf properties including
the area, boundaries and value are required to be 15
mentioned in the list of wakfs to be published under S.
5(2) of the Act.
33. Thus, the law contemplates that after a preliminary
survey is conducted, the list of wakfs is required to be
published in the gazette and this list is required to
contain the details of the properties of the Wakf. This is
obviously to declare and notify the wakfs that existed in
the State and to also notify the properties which the
wakfs owned or possessed.
34. S. 6 of the Act provides for raising a dispute
regarding wakfs, if any question arises as to whether a
particular property specified as wakf property in the list
of wakfs published under S. 5(2) of the Act, is a wakf
property or not or whether the wakf specified as Shia
wakf or Sunni wakf. This dispute could be raised by the
Board or Mutawali of the wakf or any person interested
therein by instituting a suit in the Civil Court. A limitation
of one year to institute a suit was also stipulated as per
the proviso.
35. Thus, the question as to whether a property
specified as a wakf property in the list of wakfs, was or
was not a wakf property, was to be determined in a suit
instituted for that purpose, either by the Board or any
other person interested. If no suit was instituted, as
provided under S. 6 of the Act, it is obvious that the list
of wakfs published under S. 5(2) of the Act became final
and as a consequence, the properties mentioned therein
would have to be considered as wakf properties
absolutely.
36. In this case, it is not in dispute that house bearing
No. 265 measuring 18′ × 20′ was mentioned as property
of the wakf of Dargah Hazrath Noor Ali Shah Makan,
Sunni, Benki Nawab Road, Mysore City. This property,
specified as wakf property with all its necessary
particulars as provided under the Rules, was not
challenged under S. 6 of the Act.
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37. Since this publication of the list of wakfs and its
properties in the gazette was not disputed by institution
of a suit by anyone interested in the wakf and also by
the Board, it would not be open to any person, including
the Board to contend that the property mentioned in the
list of wakfs was either incorrect or did not reflect the
actual measurement.
38. To put it differently, the measurement of the
property specified in the list of wakfs published under S.
5(2) of the Act became final and absolute not only
insofar as the Board but also in respect of any other
person who was interested in the wakf.
39. It is also not in dispute that in this particular case
that an order had been passed to take over the
management of the wakf and this was challenged by the
petitioners in WP No. 37849/1992 and the order
directing management to be taken over was also
quashed.
40. It is also not in dispute that an order dated 29-1-
2003 appointing the Three Member Official Committee
and the Circular dated 2-5-2003 issued by the
Committee directing the tenants to pay rents were the
subject matters of WP No. 26509/2003, which was
dismissed reserving liberty to the petitioners to approach
the Tribunal and the Tribunal rejected the said challenge
made by the petitioners, which had resulted in filing of
WP No. 3065/2010 by the petitioners.
41. It is also not in dispute that this Court set aside the
finding of the Tribunal regarding ‘A’ schedule property
being the ancestral property and the ‘B’ schedule
property i.e., the area stated in the list of wakf published
in the gazette under S. 5(2) of the Act and reserved
liberty to the petitioners to approach the appropriate
authority for securing a declaration of title.
42. Thus, in essence, the question as to whether the
petitioners own the property, other than the property
bearing house No. 265 measuring 18′ × 20′, was left
open to be adjudicated in the event the petitioners or the
Board initiated appropriate proceedings in that regard.
43. It is at this stage that the proceedings have been
initiated by the Board for correcting the measurements
specified in the Gazette on 1-4-1965.
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44. This is clear from the communication dated 25-11-
2010, which is produced along with the statement of
objections by the Wakf Board, which reads as follows:
“Adverting to above, I am to state that Hazrath Noor Ali
Sha Makan, Benki Nawab Street, Mysore, is a Notified
under Sl. No. 24 of Government Gazette bearing No.
MWB/19(2)/1965, dated 1-4-1965. In the said Gazette
the measurement is mentioned as only 18′ × 20′
whereas the entire area of the Dargah measures towards
East-38′, towards West — 70′, towards North — 58′ and
towards South-68′ and as per the measurement the
schedule of the property is, towards East by Private
Property, towards West by Benki Nawab Street, towards
North by Noor Ali Shah Makan Street, towards South by
Private Property. So, the entries have to be corrected as
above. Hence, I am enclosing herewith the Xerox copy of
Encumbrance Certificate issued by the Sub-Registrar,
Mysore 20 (South), Mysore, is enclosed herein and it is
requested kindly to correct the entries as above.”
45. As could be seen from the said communication, it
was the Secretary of Dargah Hazrath Noor Ali Shah
Makan, who requested the Board that the property
measurement shown in the list of wakf published in the
gazette under S. 5(2) of the Act was not 18′ × 20′, but
was a larger extent and therefore, the same was
required to be corrected.
46. The Board has also produced a mahazar drawn up
by the Revenue Inspector as Annexure-R1. The relevant
portion of the said mahazar reads as follows:
"
ೖಸೂರು ಮಂ ಹಾ ನೂ ಅ ಮಾ ದಗ ಾರದ ಇದ ೆ
.
!ೇ#ದ ಆ% &ಾ%ಗಳನು( ತ*ೆ ನ+ೆ,ಾಗ -ಾವ/ 0ಾಜ#,ೆ2ವ/ ಸದ# ದ3ಾ ದ
ಆಡ5ತ ವನು( ಜ-ಾ6 ಮಹಮ78 ಅಬು2ಾ ಷ#ೕಫರು ನ+ೆ ೊಂಡು
.
ಬರು<%ರು=ಾ%>ೆ ಈ ದ3ಾ ೆ ಪAವ Bಾಗ ೆ !ೇ#ದಂ=ೆ -ಾಡು 0ೆಂCನ ಮ53ೆ
.
20 X 18 265 60/-
+ೋ ನಂ ಉಳE,ಾ2Fರು=ೆ% ಇದರ Gಾ0ೆHಾನ Iಾ 3ೆ
.
720/- 10,000/-
ರೂ ಗಳJ !ಾ Hಾದ ಒಟುM ಉತN<% ರೂ&ಾOಗಳJ Iೆ ೆ
. .
52/-
ರೂ&ಾOಗಳJ ಇದರ ಮು* ಪP ಕಂ,ಾಯ ವಷ ೆ ರೂ ಗಳJ ಇರು=ೆ%
720/-
ಅಂತು% ಈ ದ3ಾ ದ !ಾHಾನ ವರGಾನ ರೂ&ಾOಗಳJ ಕಂ,ಾಯ
.
52/- 100/-
ರೂ ಗಳJ !ಾ Hಾನ #&ೇ#3ೋಸ ರ ಖಚು ರೂ&ಾOಗಳJ
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SURAJ GOVINDA RAJ
05/11/2026, 17:32, Bengaluru
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ಇದರ ಇತರ ವ3ೈ>ೆ ಖಚು 250/- ರೂ&ಾOಗಳJ ಅದಲ ,ೆ ಊ#ನರುವ
100/- 450/-
ಬಡಜನ#3ೆ ಅನ( 0ಾWಸುವ ಖಚು ಅಂತು ಒಟುM ಅ,ಾಯದ
.
218/-
ರೂ&ಾOಗಳJ ಖ ಾಗು=ೆ% ಮತು% ಉ5 ೆ ಬಲಗು ರೂ ಗಳJ
.
”
!ಾ Hಾನ ಉ5ಯುತ%,ೆ
47. As could be seen from this mahazar also, the
Revenue Inspector, in the year 1945, stated that to the
east of Dargah, there was a country tiled roof shop
measuring 18′ × 20′. The mahazar does not indicate a
larger extent of property being attached to the Dargah or
belonging to the Dargah. It is, therefore, clear that by
the communication dated 25-11-2010, an attempt was
being made to enlarge the extent of the property bearing
No. 265 contrary to the mahazar of the year 1945.
48. As stated earlier, the property specified as wakf
property in the list of wakf published under S. 5(2) of the
Act was amenable to a challenge by institution of a suit,
provided the same had been instituted within a period of
one year. If the list of wakfs, published in the
gazette, had not been challenged and which
resulted in a finality being attached to the list of
wakfs and its properties, it would not be
permissible for the Board to alter the extent of the
properties of a wakf, at a later stage. If this is
permitted, it would basically permit the Board to nullify
the finality attached to the publication of the list of
wakfs, and which is not provided under the Act.
49. Learned Senior Counsel, however, sought to place
reliance on S. 21 of the General Clauses Act and S. 28 of
the Act.
50. S. 21 of the General Clauses Act confers powers on
the authority which issues a notification to modify, vary
or rescind the said notification. It is to be stated here
that the power available under S. 21 of the General
Clauses Act is in respect of a notification which is issued
in exercise of a statutory power. This power would not
be available in respect of publication of a list of wakfs in
the gazette. The power to issue a notification under a
statutory provision is completely different from the
obligation of the authority to cause the publication of list
of wakf in the gazette after completion of a preliminary
survey.
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51. It is to be stated here that the list of wakfs has to be
published after preliminary survey is conducted and a
report is submitted to the Government. The Board, in
fact, has to thereafter examine the report and publish
the list of wakfs in the Gazette.
52. The Board, on publication of the list of wakfs in
the gazette has not been conferred with the power
to modify the list. The Board did possess the right to
raise a dispute as provided under S. 6 of the Act within a
period of one year. Once the Board chose not to
challenge the list of wakfs published, it would not be
permissible for the Board to make any attempt to alter
the list of wakfs.
53. S. 21 of the General Clauses Act states that if a
Central Act confers a power to issue a notification, that
power would include the power to be exercisable to add
or amend or vary or rescind the notifications, subject to
the same terms and conditions for issuance of the
notification.
54. A plain reading of this section would indicate that S.
21 of the General Clauses Act would come into operation
only in respect of a power conferred under an Act to
issue a notification. A notification issued under an Act is
an exercise of statutory power and cannot be relatable to
an obligation cast upon the authority to cause the
publication of an order of a list.
55. The argument of the learned Senior Counsel in this
regard is, therefore, without any merit.
56. As far as the argument that the Board has the right
to amend the register of wakfs under S. 28 of the Act is
concerned, it is to be noticed here that Chapter-IV of the
Act provides for registration of wakf and it provides for
the manner in which the registration is required to be
done. The maintenance of register of wakf would have
no bearing on the list of wakfs published in the gazette
and the Register is basically to reflect the particulars of
the properties as indicated in the list of wakfs published
under S. 5(2) of the Act. The Board, which has been
conferred with the power to direct Mutawali to apply for
registration of wakf or cause the registration of wakf,
cannot utilize this power to amend the list of wakfs
published in the gazette under S. 5(2) of the Act. The
power to amend the register of wakfs is wholly different
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from the power to amend the list of wakfs published
under S. 5 (2) of the Act.
57. As noticed above, the list of wakfs published under
S. 5(2) of the Act can only be disturbed by the decree of
a competent Civil Court, provided the suit is instituted
within a period of one year. Once the period of one
year elapses, the list of wakfs published in the
gazette which also indicates the properties of the
wakfs becomes unalterable. Therefore, the argument
with regard to S. 28 of the Act conferring power on the
Board to amend the list of wakfs by issue of a
corrigendum to the notification published in the gazette
under S. 5(2) of the Act is without any substance.
58. It may also be pertinent to state here that the
Black's Law Dictionary has defined ‘corrigendum’ as “an
error in a printed work discovered after the work has
gone to the press”. Thus, a corrigendum is issued
only to correct an error in the printed text and this
cannot be utilized to effect an amendment which
has the effect of adding something totally new.
60. It is to be stated here that the question as to
whether a property was a wakf property or not in the list
of wakf published in the gazette under S. 5(2) of the Act
is amenable to the jurisdiction of the Civil Court under S.
6(2) of the Act. However, the legality or the validity
of a corrigendum which was issued nearly 46 years
after the publication of the list of wakfs in the
gazette cannot be considered by the Tribunal. The
Tribunal has not been conferred with the power to
strike down a notification or a corrigendum. The
petitioners are questioning the jurisdiction of the
Wakf Board in issuing a corrigendum and
therefore, it is this Court which has possessed the
jurisdiction to test the validity of corrigendum.
8.11. By relying on Nishat Kasar , his submission is
that the list of wakfs published in the Official
Gazette, together with the particulars of the
properties specified therein, attains finality
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upon expiry of the period prescribed under
Section 6 of the Wakf Act, 1954, in the absence
of a challenge in the manner contemplated
under the said provision. It is contended that
the Wakf Board cannot, after such finality has
attached to the notified list, unilaterally alter or
enlarge the extent of a property by issuing a
corrigendum, as such an exercise would
amount to a substantive modification of the
notified list rather than the correction of a mere
clerical or typographical error. The judgment
further clarifies that the power to amend the
register of wakfs under Section 28 of the Act is
distinct from the power to alter the list of wakfs
published under Section 5(2), and that the
former cannot be invoked to effect a
modification of the latter. It is also submitted
that Section 21 of the General Clauses Act,
1897, does not confer an independent power
upon the Wakf Board to alter the list of wakfs
published pursuant to the statutory survey and
the procedure prescribed under the Act. A
corrigendum, being intended only to rectify an
error in the published text, cannot be employed
to incorporate additional property or enlarge
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the area of an already notified property.
Accordingly, it is contended that any attempt by
the Wakf Board to alter the extent or particulars
of a property specified in the Gazette
notification, after the notified list has attained
finality, without recourse to the procedure
prescribed by law, is impermissible and without
jurisdiction. The judgment further recognises
that the jurisdiction to examine the legality and
validity of a corrigendum issued by the Wakf
Board, where the challenge concerns the
Board's authority to issue it, lies with the High
Court and not the Wakf Tribunal.
8.12. He submits that the land in Sy.No.56/1
measured 3 acres 26 guntas belonged to one
Malik Sahib. Malik Sahib had two sons, namely
Mastan Sahib and Sheik Ahmed. Mastan Sahib,
under a sale deed dated 18.03.1943, sold the
southern portion of Sy.No.56/1 in favour of
Basha Sahib S/o Ameer Sahib and claims that
the said land was assigned Sy.No.56/1A,
measuring 1 acre 12 guntas.
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8.13. He submits that the land in Sy.No.56/1A,
measuring 1 acre 12 guntas along with
adjoining lands in Sy.No.55/21 and Sy.No.56/2
was purchased jointly by Narasimhaiah and
Chikkalingappa under a registered sale deed
dated 04.02.1981. In the sale deed, the
property was wrongly shown as Sy.No.55/1A.
However, the boundaries are proper inasmuch
as they indicate that it is a land in Sy.No.56/1A
which had been sold.
8.14. He submits that on an application filed by the
petitioners vide order dated 16.06.2016, the
clerical error was corrected and the survey
number of the land purchased by
Sri.N.Narasimhaiah and K.S.Chikkalingappa was
corrected to Sy.No.56/1A. Therefore, he
submits that there cannot be any dispute as
regard to purchase of Sy.No.56/1A post the
said correction.
8.15. His submission is that the conversion order was
granted in respect to Survey No.56/1A on
20.06.1983 and thereafter layout plan approval
was granted on 20.10.1992, both of which are
prior to the rectification on 16.06.2016. He
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therefore submits that there cannot be any
dispute as regards the purchase, conversion
and or the formation of the sites in Sy.No.56/1.
8.16. His submission is that on 20.09.2000, a
representation was submitted by
N.Narasimhaiah for removal of the wrongly
erected stone slabs in pursuance of which the
District Wakf Advisory Committee, had
observed that it is only land in Survey No.55/1
which is a registered graveyard and the
remaining land in Survey No.56/1 and 6
belonged to Narasimhaiah and Defence Officer's
Site Owner's Association respectively.
8.17. The District Wakf Advisory Committee also
observed that there is an encroachment by the
local Muslim Jamaat, that they are burying
dead bodies in the encroached land and in that
background, notices had been issued to the
office bearers of the mosque. This he submits
establishes that the land of the petitioner has
been encroached by the mosque. In that
background, he submits that a corrigendum to
the notification could not have been issued
including this land as Wakf land when it was not
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Wakf land as per the notification in the year
1965.
8.18. His submission is also that despite an order of
status quo having been passed on 13.12.2013,
the burial continues, encroaching upon the land
of the petitioners. On that ground he submits
that the corrigendum is required to be set aside
and the land in Survey No.56/1A measuring 1
acre and 12 guntas is required to be directed to
be handed over to the petitioners.
9. Smt.Anuradha S.R., learned Senior Counsel
appearing for the respondent Nos. 1 and 2 would
submit that:
9.1. The lis in the present matter cannot be decided
by this court in a writ petition. The survey was
consented to by all the parties so as to
ascertain what is the extent of free land which
is available where there are no bodies buried,
and tombstones erected.
9.2. On the survey being completed, it has been
found that there are bodies buried in the entire
land of Survey No.56/1A and irrespective of the
corrigendum which has been issued, there
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being bodies buried in the said land over a
period of time, the said buried bodies cannot be
exhumed and or removed to make available the
land to the petitioners.
9.3. The reliefs sought for by the petitioners cannot
be granted after 16 years of the corrigendum
having been issued on 08.07.2010. The dispute
in the present matter is essentially as regards
the title to the property which cannot be
adjudicated in a writ petition.
9.4. She submits that admittedly the petitioner had
purchased the land in Sy.No.55/1A as per the
registered sale deed. It was only on an
application made by petitioners that the entries
were corrected by the Sub Registrar. There is
no rectification of the sale deed which has
occurred correcting the identity of the land from
Sy.No.55/1A to Sy.No.56/1A. In the face of a
sale deed mentioning land to be covered under
Sy.No.55/1A, in a writ petition, this Court
cannot set aside the corrigendum issued in
respect of Sy. No.56/1A, as regard which there
is no sale deed in the name of Narasimhaiah
and K.S.Chikkalingappa.
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9.5. Whether the boundaries depicted in the sale
deed dated 04.02.1981 referred to Sy.No.56/1A
or Sy.No.55/1A would require trial and unless
evidence is led in that regard and a declaration
is issued by competent court of law that the
subject matter of sale deed dated 04.02.1981 is
Sy.No.56/1A and not Sy.No.55/1A, no right can
be claimed by the petitioners and in the
absence thereof, quashing of the Corrigendum
would not arise since the petitioners on the
basis of the sale deed dated 04.02.1981 can
claim right only over Sy.No.55/1A and not over
Sy.No.56/1A.
9.6. Her submission as regards the Conversion order
and formation of the layout is also the same
inasmuch as neither the conversion order nor
the layout plan sanction has been acted upon
by the predecessors of the petitioners or the
petitioners subsequently inasmuch as the entire
land in Sy.No.56/1A has been used for burial of
dead bodies as a kabristan. Mere approval of a
layout plan sanction without a layout being
implemented would not enure to the benefit of
the petitioners to be considered in a writ
petition is her submission.
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9.7. In that view of the matter, she submits that the
appropriate remedy that is available for the
petitioners is to file necessary proceeding
before the Wakf Tribunal in terms of Section 84
of the Wakf Act, 1995 since there is a bar of
jurisdiction of the Civil Court under Section 85
of the Wakf Act.
9.8. She submits that it is only the Tribunal who can
determine any dispute, question or other
matter relating to a Wakf or Wakf properties. In
the present matter, the land in Sy.No.56/1A
having been put to use as a kabristan, dead
bodies have been buried therein; as per the
survey report, there being no free land
available in Sy.No.56/1A, a writ petition is not
maintainable and the appropriate remedy is
before the Wakf Tribunal.
9.9. She relies on the judgment of Hon’ble Apex
Court in the case of Board of Wakf, West
Bengal vs. Anis Fatma Begum & anr., [Civil
Appeal No.5297/2004], more particularly
Paragraphs 10, 11, 12, 13, 14 and 25, which
are reproduced hereunder for easy reference:-
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10. In our opinion, all matters pertaining to wakfs
should be filed in the first instance before the Wakf
Tribunal constituted under Section 83 of the Wakf
Act, 1995 and should not be entertained by the
civil court or by the High Court straightaway under
Article 226 of the Constitution of India.
11. It may be mentioned that the Wakf Act, 1995 is a
recent parliamentary statute which has constituted a
Special Tribunal for deciding disputes relating to wakfs.
The obvious purpose of constituting such a Tribunal was
that a lot of cases relating to wakfs were being filed in
the courts in India and they were occupying a lot of time
of all the courts in the country which resulted in increase
in pendency of cases in the courts. Hence, a Special
Tribunal has been constituted for deciding such matters.
12. Section 83(1) of the Wakf Act, 1995 states:
“ 83. Constitution of tribunals, etc .—(1) The State
Government shall, by notification in the Official Gazette,
constitute as many tribunals as it may think fit, for the
determination of any dispute, question or other matter
relating to a wakf or wakf property under this Act and
define the local limits and jurisdiction under this Act of
each of such Tribunals.”
13. Section 84 of the Act states:
“ 84. Tribunal to hold proceedings expeditiously and
to furnish to the parties copies of its decision.—
Whenever an application is made to a tribunal for
the determination of any dispute, question or other
matter relating to a wakf or wakf property it shall
hold its proceedings as expeditiously as possible
and shall as soon as practicable, on the conclusion
of the hearing of such matter give its decision in
writing and furnish a copy of such decision to each
of the parties to the dispute.”
14. Thus, the Wakf Tribunal can decide all disputes,
questions or other matters relating to a wakf or wakf
property. The words “any dispute, question or other
matters relating to a wakf or wakf property” are, in our
opinion, words of very wide connotation. Any dispute,
question or other matters whatsoever and in
whatever manner which arises relating to a wakf
or wakf property can be decided by the Wakf
Tribunal. The word “wakf” has been defined in Section
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3(r) of the Wakf Act, 1995 and hence once the property
is found to be a wakf property as defined in Section 3(r),
then any dispute, question or other matter relating to it
should be agitated before the Wakf Tribunal.
25. For the reasons mentioned above, the impugned
judgment of the Calcutta High Court cannot be sustained
and it is hereby set aside. We hold that only the Wakf
Tribunal has jurisdiction in the matter and the
parties can approach the Wakf Tribunal, if so
advised. The appeal stands allowed. There shall be no
order as to costs.
9.10. By relying on Anis Fatma Begum, she submits
that disputes, questions or other matters
relating to a wakf or wakf property are required
to be adjudicated in the first instance by the
Wakf Tribunal constituted under Section 83 of
the Wakf Act, 1995, and that the jurisdiction of
the Tribunal extends to all matters falling within
the ambit of the said provision. The Hon’ble
Apex Court has emphasised that the expression
“any dispute, question or other matter relating
to a wakf or wakf property” is of wide import
and encompasses disputes relating to the
status of a property as wakf property and other
questions arising in relation thereto.
Accordingly, she contends that the dispute in
question, being one relating to wakf property,
ought to be raised before the competent Wakf
Tribunal in accordance with the statutory
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scheme, rather than being entertained directly
by the Civil Court or the High Court under
Article 226 of the Constitution of India, in the
first instance.
9.11. She relies on the judgment of Co-ordinate
Bench of this Court in the case of Mujawareen
Nazreen Dargah Committee vs. KSBW &
ors., [WP No.5369/2015] , more particularly
Paragraph 4, which is reproduced hereunder for
easy reference:-
4. The learned Counsel appearing for the Wakf
Board would however point out that it is not as if
the property was not notified in the year 1965. It
was indeed shown as ‘darga’, but without proper
boundaries being indicated. It is this which has been
supplied by the Corrigendum. There is no attempt
to play mischief as sought to be unfairly alleged by
the learned counsel for the petitioners.
9.12. By relying on Mujawareen Nazreen Dargah
Committee, she submits that in that case the
property in question had already been notified
in the year 1965 as a ‘darga’ and that the
subsequent Corrigendum was issued only to
supply the boundaries which had not been
properly indicated in the original notification.
She contends that the Corrigendum did not
introduce a new property into the notified list
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but merely clarified the boundaries of a
property that had already been notified, and
that such action did not constitute any attempt
to improperly alter or enlarge the original
notification.
9.13. She relies on the judgment of Hon’ble Apex
Court in the case of Punjab Wakf Board vs.
Raj Rani (Dead) Through LRS [Civil Appeal
No.295/2005], more particularly Paragraph 14,
which is reproduced hereunder for easy
reference:-
14. Admittedly, no one challenged the genuineness of
the Notification whereby the suit property was declared
as Wakf property at any stage of the proceeding. In the
absence of such challenge, the Court shall have to
draw presumption with regard to the genuineness
of the Notification, as provided under Section 81 of
the Evidence Act. Moreover, neither the first Appellate
Court nor the High Court has considered and noticed the
provisions of Section 5 of the Wakf Act, 1995 (Section 5
of the Old Wakf Act, 1954).
9.14. By relying on Raj Rani , she submits that where
the genuineness of the notification declaring a
property as Wakf property has not been
challenged at any stage of the proceedings, the
Court is required to draw a presumption as to
the genuineness of such notification under
Section 81 of the Evidence Act. She further
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contends that the provisions of Section 5 of the
Wakf Act, 1995, which provides for publication
of the list of wakfs, are material to the
determination of the dispute and cannot be
overlooked.
9.15. She relies on the judgment of Hon’ble Apex
Court in the case of Rashid Wali Beg vs.
Farid Pindari & ors [Civil Appeal No.
6336/2021], more particularly Paragraphs 31,
32, 53 and 54, which are reproduced hereunder
for easy reference:-
31 . A bare reading of Sections 6 and 7 extracted above,
shows that the language employed therein appears to
have deflected the attention of many a court without
exception. The reason why we say so, is this. A careful
look at the scheme of the Act would show that the Act is
divided into 9 chapters. Chapter II which contains
Sections 4 to 8, is primarily concerned with the survey of
waqfs 4. Sections 6 and 7 are incidental to the scheme
of Chapter II alone, which is why they speak only about
two questions namely, (i) whether a particular property
specified as a waqf property in the list of waqfs is
actually a waqf property or not; and (ii) whether a waqf
specified in such list is a Shia waqf or Sunni waqf. While
Section 4 contemplates a preliminary survey of all waqfs
in the State, Section 5(2) speaks about publication of the
list of waqfs (separately for Shia and Sunni) in the
official gazette. Since Sections 6 and 7 follow Sections 4
and 5, they refer only to the aforesaid two questions. In
other words, the questions relevant for the purposes of
Sections 4 and 5 alone, are dealt with in Sections 6 and
7 and hence the discussion regarding the jurisdiction of
the Waqf Tribunal should not start and end with Sections
6 and 7.
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32. Sections 83 and 85, as well as Sections 86, 90 and
93, which use the word “court”, are to be found in
Chapter VIII of the Act. The heading given to Chapter
VIII is “Judicial Proceedings”. Therefore, for finding an
answer to the question relating to the bar of jurisdiction
under Section 85, it is not enough merely to refer to
Section 6(5) or Section 7(2). The language of Section 85
is clearly in contrast to the language employed in Section
6(5) and Section 7(2).
53. It is well settled that the court cannot do violence to
the express language of the statute. Section 83(1) even
as it stood before the amendment, provided for the
determination by the Tribunal, of any dispute, question
or other matter (i) relating to a waqf; and (ii) relating to
a waqf property. Therefore to say that the Tribunal
will have jurisdiction only if the subject property is
disputed to be a waqf property and not if it is
admitted to be a waqf property, is indigestible in
the teeth of Section 83(1).
54. In fact, Section 83(5) of the Act makes it clear
that the Tribunal shall be deemed to be a Civil
Court and shall have the same powers as may be
exercised by a Civil Court under the CPC, while
trying a suit or executing a decree or order. This is
why this Court held in Syed Mohideen and Another
vs. Ramanathapura Peria Mogallam Jamath and
Others5 that the Waqf Tribunal will have power to
issue temporary injunctions under Order XXXIX,
Rule 1 CPC.
9.16. By relying on Rashid Wali Beg , she submits
that the jurisdiction of the Wakf Tribunal cannot
be construed narrowly by confining the scope of
Sections 6 and 7 of the Wakf Act, 1995, which
deal with specific questions arising in the
course of the survey and publication of the list
of wakfs. She contends that Section 83(1)
confers wide jurisdiction on the Wakf Tribunal to
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determine any dispute, question or other
matter relating to a wakf or wakf property,
irrespective of whether the property’s character
as wakf property is disputed or admitted. She
further submits that, in view of Section 83(5),
the Tribunal is deemed to be a Civil Court and
possesses the powers of a Civil Court under the
Code of Civil Procedure, including the power to
grant temporary injunctions. Accordingly, she
contends that disputes relating to wakf or wakf
property fall within the jurisdiction of the Wakf
Tribunal in accordance with the statutory
scheme of the Act.
9.17. On all the above grounds, she submits that the
writ petition is required to be dismissed.
10. Heard Sri.D.R. Ravishankar, learned Senior Counsel,
for Sri.Sunil Kumar Patel, learned counsel for the
petitioners, Smt.Anuradha S.R., learned Senior
Counsel for respondents No.1 and 2,
Sri.B.S.Karthikeyan, learned counsel for respondent
No.5 and Sri.Mohammed Jafar Shah, learned AGA for
respondents No.4 and 6. Perused papers.
11. The Points that would arise for consideration in the
present matter are:
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(i) Whether the disputed questions
concerning the identity, location,
ownership and Wakf character of the
subject property, including the extent of
land used as a graveyard, can be
adjudicated in proceedings under Articles
226 and 227 of the Constitution of India?
(ii) Whether, in view of Sections 83 and 85 of
the Wakf Act, 1995, the dispute
concerning the nature and character of the
subject property falls within the
jurisdiction of the Wakf Tribunal, requiring
the petitioners to avail the statutory
remedy?
(iii) Whether, in the facts and circumstances of
the case, the writ petition is liable to be
dismissed, reserving liberty to the
petitioners to institute appropriate
proceedings before the competent Wakf
Tribunal, without expressing any opinion
on the merits of the rival claims?
(iv) What Order?
12. This Court answers the above points as follows:
13. Answer to Point No. (i): Whether the disputed
questions concerning the identity, location,
ownership and Wakf character of the subject
property, including the extent of land used as a
graveyard, can be adjudicated in proceedings
under Articles 226 and 227 of the Constitution
of India?
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13.1 Sri. Sunil Kumar Patel, learned counsel for the
petitioners, submits that the land bearing
Sy.No.56/1A, measuring 1 acre 12 guntas, is
private property and was never Wakf land. He
submits that the sale deed dated 04.02.1981
describes the property by its boundaries, which
are correctly stated, but that the survey
number was mistakenly mentioned as
Sy.No.55/1A.
13.2 In support of the petitioners’ claim of title,
learned counsel submits that Sy.No.56/1,
measuring 3 acres 26 guntas, originally
belonged to Malik Sahib, who had two sons,
namely, Mastan Sahib and Sheik Ahmed. Under
a sale deed dated 18.03.1943, Mastan Sahib
sold the southern portion of the land to Basha
Sahib, son of Ameer Sahib. The said portion
was assigned Sy.No.56/1A and measured 1 acre
12 guntas. Narasimhaiah and Chikkalingappa
subsequently purchased the said property,
along with adjoining lands, under a registered
sale deed dated 04.02.1981.
13.3 Learned counsel further submits that, on an
application made by the petitioners, the Sub-
Registrar passed an order dated 16.06.2016
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correcting the clerical error in the survey
number. He contends that, following the
correction, there can be no dispute regarding
the purchase of Sy.No.56/1A. He also relies on
the conversion order dated 20.06.1983 and the
layout approval dated 20.10.1992, both of
which, according to him, relate to Sy.No.56/1A.
He submits that these documents establish the
purchase, conversion and formation of sites in
the property.
13.4 Learned counsel submits that, on 20.09.2000,
N. Narasimhaiah submitted a representation
seeking removal of stone slabs allegedly
erected on the property. The District Wakf
Advisory Committee thereafter observed that
only the land in Sy.No.55/1 was a registered
graveyard, while the remaining lands in
Sy.No.56/1 and Sy.No.6 belonged to
Narasimhaiah and the Defence Officers’ Site
Owners’ Association, respectively. The
Committee also observed that the local Muslim
Jamaat was burying dead bodies on land
alleged to have been encroached upon. Notices
were accordingly issued to the office bearers of
the mosque.
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13.5 Learned counsel further submits that burials
have continued despite the order of status quo
dated 13.12.2013 passed in the present writ
petition and seeks a direction for handing over
the land to the petitioners. On the question of
the appropriate forum, he relies on Nishat
Kasar v. State of Karnataka [2023 SCC
Online KAR 999], particularly Paragraph 60, to
contend that the validity of a corrigendum is
amenable to examination by this Court and not
by the Wakf Tribunal.
13.6 Smt. Anuradha S.R., learned Senior Counsel
appearing for respondents No.1 and 2, submits
that the disputed questions raised in the writ
petition cannot be adjudicated in these
proceedings. She submits that the parties had
agreed to a survey only to ascertain the extent
of vacant land where no bodies had been buried
and no tombstones had been erected.
According to her, the survey discloses burials
throughout Sy.No.56/1A. She contends that,
irrespective of the outcome of the challenge to
the corrigendum, the buried bodies cannot be
exhumed to make the land available to the
petitioners.
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13.7 Learned Senior Counsel submits that the
dispute is essentially one of title. The
petitioners admittedly purchased Sy.No.55/1A
under a registered sale deed. The survey
number was subsequently corrected by the
Sub-Registrar on an application made by the
petitioners. However, the vendors have not
executed any rectification deed. According to
her, whether the boundaries mentioned in the
sale deed correspond to Sy.No.56/1A or
Sy.No.55/1A requires a trial. Until a competent
court declares that the sale deed relates to
Sy.No.56/1A, the petitioners can claim title only
to Sy.No.55/1A. She further submits that
neither the conversion order nor the layout
sanction was acted upon, as the entire land has
been used as a kabristan.
13.8 On the question of the appropriate forum,
learned Senior Counsel relies on Board of
Wakf, West Bengal v. Anis Fatma Begum
[Civil Appeal No.5297/2004], particularly
Paragraphs 10 to 14 and 25, to contend that
Wakf-related disputes must ordinarily be
referred to the Wakf Tribunal and should not be
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entertained by the High Court at the first
instance under Article 226.
13.9 The question for consideration is whether this
Court can, in proceedings under Articles 226
and 227 of the Constitution of India, adjudicate
the disputed questions concerning the identity,
location, ownership and Wakf character of the
subject property, as well as the extent of the
land used as a graveyard.
13.10 Articles 226 and 227 of the Constitution of India
confer wide constitutional powers on this Court.
Article 226 empowers this Court to issue writs,
directions and orders for the enforcement of
fundamental rights and “ for any other purpose ”,
while Article 227 confers superintendence over
courts and tribunals within its territorial
jurisdiction. The existence of constitutional
jurisdiction must, however, be distinguished
from the maintainability of a particular writ
petition and from the exercise of jurisdiction in
a given case.
13.11 In State of Andhra Pradesh v. Andhra
Pradesh State Wakf Board [(2022) 20 SCC
383], the Hon’ble Supreme Court considered
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Rashid Wali Beg v. Farid Pindari [Civil
Appeal No.6336/2021] and Board of Wakf,
West Bengal v. Anis Fatma Begum [Civil
Appeal No.5297/2004]. The Hon’ble Supreme
Court observed that the latter decision arose
from a suit and that its observation concerning
Article 226 was “clearly obiter as that was not
the question arising for consideration”
(Paragraph 124). The Hon’ble Supreme Court
further held that, although the power under
Article 226 is wide, courts have evolved self-
imposed restraints “in the interest of
administration of justice and for better, more
efficient and informed exercise of the said
powers” (Paragraph 128).
13.12 The Hon’ble Supreme Court recognised that,
where a dispute involves complex questions of
fact requiring oral evidence, the High Court
may decline to adjudicate it in writ proceedings.
It extracted paragraph 10 of Babubhai
Muljibhai Patel v. Nandal Khodidas Barot
[(1974) 2 SCC 706] which reads:
“When the petition raises complex questions of fact,
which may for their determination require oral
evidence to be taken, and on that account the High
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Court is of the view that the dispute should not
appropriately be tried in a writ petition, the High
Court may decline to try a petition...” (Paragraph
132)
13.13 The recognised exceptions to the rule of
alternative remedy include enforcement of
fundamental rights, breach of principles of
natural justice, proceedings wholly without
jurisdiction and a challenge to the validity of a
statute (Paragraphs 129 and 130). The Hon’ble
Supreme Court extracted paragraph 27.6 of
Radha Krishan Industries v. State of H.P.
[(2021) 6 SCC 771] which reads:
“In cases where there are disputed questions of
fact, the High Court may decide to decline
jurisdiction in a writ petition. However, if the High
Court is objectively of the view that the nature of
the controversy requires the exercise of its writ
jurisdiction, such a view would not readily be
interfered with.”. (Paragraph 133)
13.14 Applying these principles, the Hon’ble Supreme
Court held that the High Court had erred in
directing the parties to approach the Tribunal in
a case involving the interpretation of statutes,
Farmans and documents, since:
“It is not a case where any oral evidence would be
necessary or is available now.” (Paragraph 136).
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13.15 The governing principle is that disputed
questions of fact do not, by themselves,
extinguish the constitutional jurisdiction of this
Court or render every writ petition involving
such questions inherently non-maintainable.
The nature of the dispute and the material
required for its determination must be
examined. Where the controversy can be
decided on the basis of documents and legal
interpretation without oral evidence, this Court
may adjudicate it. Where the determination
requires oral evidence and a trial, this Court
may decline to adjudicate those factual issues
in writ proceedings.
13.16 In the present case, the petitioners do not seek
enforcement of a fundamental right, challenge
the validity of the Act or allege denial of an
opportunity of hearing. The question whether
the action of the Board was wholly without
jurisdiction is itself dependent on the disputed
facts
13.17 The disputes in the present case concern the
identity and location of the land, the petitioners’
title, the Wakf character of the property and the
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extent of the land used as a graveyard. Their
determination requires examination of
documents and oral evidence. These disputes
do not establish that This Court lacks
constitutional jurisdiction. They establish that
the factual controversy cannot appropriately be
tried in the present writ proceedings.
13.18 The first disputed question concerns the
identity and location of the land. The sale deed
dated 04.02.1981 describes the property as
Sy.No.55/1A, while the petitioners claim that
the property intended to be conveyed was
Sy.No.56/1A. The correction made by the Sub-
Registrar on 16.06.2016 was effected on the
application of the petitioners and is not
supported by a rectification deed executed by
the vendors. The correction does not, by itself,
establish the identity of the property conveyed
under the sale deed.
13.19 The boundaries recited in the deed–Anchipura
village boundary on the east, Imam Sabi’s land
on the west, Masidi land on the north and Malik
Sab’s land on the south–cannot be correlated
with the actual land merely on the basis of the
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submissions of learned counsel. Such
correlation requires examination of the survey
records, relevant sketches and evidence of
persons acquainted with the neighbouring
lands.
13.20 The survey ordered on 15.07.2026, on the joint
submission of the petitioners and the Wakf
Board, covered Sy.Nos.55, 56 and 57 and
resulted in a report dated 06.08.2026. The
report records two portions in Sy.No.56/1,
measuring 2 acres and 1 acre 26 guntas,
respectively. The petitioners contend that their
land measuring 1 acre 12 guntas falls within
the latter portion.
13.21 The sketch indicates the location of the graves
on the ground. It does not, by itself, establish
the survey number in which each grave is
situated. Nor does the date inscribed on a
tombstone conclusively establish the age of the
grave. Whether the graves bearing dates
04.06.1957 and 07.08.1959 are as old as those
dates, and whether they fall within Sy.No.56/1A
or Sy.No.57, can be established only through
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evidence, including the examination and cross-
examination of the ADLR.
13.22 The survey was undertaken for the limited
purpose of identifying and photographing the
available vacant land. The parties did not agree
that the survey report would conclusively
determine title or the Wakf character of the
property.
13.23 The question of ownership is also disputed. The
petitioners rely on a chain of title involving
Malik Sahib, his sons, the sale dated
18.03.1943 in favour of Basha Sahib, and the
sale deed dated 04.02.1981. Whether Mastan
Sahib was entitled to sell the southern portion,
whether the sale deed of 1943 related to the
land now described as Sy.No.56/1A, and
whether the vendors under the sale deed of
1981 had title to the property conveyed are
matters requiring adjudication.
13.24 The conversion order dated 20.06.1983 and the
layout approval dated 20.10.1992 do not
resolve the dispute. Whether they relate to
Sy.No.56/1A or Sy.No.55/1A depends on the
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identity of the property. Whether the layout was
actually formed is also disputed.
13.25 The petitioners, in substance, seek a
declaration from this Court that the property is
Sy.No.56/1A and that it belongs to them as
private property. The sale deed, however,
describes the property as Sy.No.55/1A. The
correction was made subsequently by the Sub-
Registrar, and the survey report was prepared
for a limited purpose.
13.26 The submissions of learned counsel, however
firmly advanced, cannot substitute for proof of
disputed facts. This Court cannot accept the
version of one party merely because it is
asserted with confidence. The only admitted
fact is the description appearing on the face of
the sale deed.
13.27 This Court answers Point No. (i) by holding that
this Court has constitutional jurisdiction under
Articles 226 and 227 of the Constitution of India
to examine the questions raised. The writ
petition cannot, therefore, be held non-
maintainable on the ground that this Court
lacks jurisdiction over the subject matter.
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13.28 However, the disputed questions concerning the
identity, location, ownership, Wakf character
and extent of the graveyard require oral
evidence and a trial. This Court declines to
adjudicate those factual questions in the
present writ proceedings.
14. Answer to Point No. (ii): Whether, in view of
Sections 83 and 85 of the Wakf Act, 1995, the
dispute concerning the nature and character of
the subject property falls within the jurisdiction
of the Wakf Tribunal, requiring the petitioners
to avail the statutory remedy?
14.1 Sri. Sunil Kumar Patel, learned counsel for the
petitioners, relies on Nishat Kasar v. State of
Karnataka [2023 SCC Online KAR 999]
(Paragraph 60) and submits that the Tribunal
cannot strike down a notification or
corrigendum and that its validity must be
examined by this Court. He contends that the
corrigendum was issued without following
Sections 4, 5 and 6. He also relies on Salem
Muslim Burial Ground Protection
Committee v. State of Tamil Nadu [(2023)
16 SCC 264] (Paragraphs 31 to 35) to contend
that a notification is not conclusive proof of
Wakf character.
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14.2 Smt. Anuradha S.R., learned Senior Counsel for
respondents No.1 and 2, submits that the
petitioners must approach the Wakf Tribunal
under Section 84, as Section 85 bars
proceedings before other forums. She relies on
Board of Wakf, West Bengal v. Anis Fatma
Begum [Civil Appeal No.5297/2004]
(Paragraphs 10 to 14 and 25) and Rashid Wali
Beg v. Farid Pindari [Civil Appeal
No.6336/2021] (Paragraphs 31, 32, 53 and 54)
to contend that the Tribunal has wide
jurisdiction over disputes relating to Wakf
property, whether its Wakf character is
admitted or disputed, and can grant interim
relief. She submits that Sy.No.56/1A is used as
a kabristan and the survey shows no free land.
14.3 The question is whether the dispute falls within
the Tribunal’s jurisdiction and, if so, whether
the petitioners should avail that remedy.
14.4 Sections 4 and 5 provide for survey of auqaf,
submission of a report and publication of the
list by the State Government after examination
by the Board. Sections 6 and 7 provide the
remedy before the Tribunal where a person
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disputes whether property specified in the list is
Wakf property. Section 6(4) makes the list final
unless modified by the Tribunal, and Section
6(5) bars proceedings before ordinary courts
concerning such questions. Section 7 provides a
corresponding application to the Tribunal,
subject to the prescribed time limits.
14.5 Section 40, before its omission by Act 14 of
2025, empowered the Board to determine
whether property was Wakf property, subject to
the Tribunal’s power to revoke or modify its
decision.
14.6 Section 83(1) empowers the Tribunal to
determine “any dispute, question or other
matter relating to a waqf or waqf property ”.
Section 83(2) permits an aggrieved person to
apply to it. Under Sections 83(5) and 83(7), the
Tribunal has the powers of a civil court and its
decision has the force of a decree. Section 84
requires expeditious disposal. Section 85
provides:
“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 waqf, waqf property or other matter
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which is required by or under this Act to be
determined by a Tribunal.”
14.7 In Rashid Wali Beg (Paragraph 31), the
Hon'ble Supreme Court held that Sections 6
and 7 concern disputes about entries in the list,
while Section 83 covers the wider range of
disputes relating to Wakf or Wakf property.
Section 85 has an “ all pervasive ” bar
(Paragraph 33). The Tribunal’s jurisdiction does
not depend on whether Wakf character is
admitted or disputed (Paragraph 53), and it can
grant temporary injunctions (Paragraph 54). In
Anis Fatma Begum (Paragraphs 14 and 25),
the Hon'ble Supreme Court similarly held that
disputes relating to Wakf property fall within
the Tribunal’s jurisdiction.
14.8 The petitioners seek declarations that the Wakf
Board and Jamia Masjid Committee have no
right over Sy.No.56/1A, removal of burials and
consequential restraint. The respondents assert
that the land is a Wakf burial ground. The
dispute therefore concerns whether the
property specified in the list is Wakf property,
within Sections 6 and 7, and in any event
relates to Wakf property within Section 83. In
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Rashid Wali Beg (Paragraph 56), claims for
permanent and mandatory injunction
concerning Wakf property were also held to fall
within the Tribunal’s jurisdiction. The dispute
and the reliefs dependent upon it are
accordingly within the Tribunal’s jurisdiction.
14.9 The petitioners are persons aggrieved within
Sections 6(1), 7(1) and 83(2), as they claim
ownership of land allegedly included in the list
and used as a burial ground. The Tribunal can
determine their claim, modify the list under
Section 6(4), receive evidence, summon
witnesses, conduct local inspection and grant
interim relief. It is an adequate and appropriate
forum for the dispute.
14.10 Salem Muslim Burial Ground Protection
Committee (Paragraphs 31 and 32) and
Madanuri Sri Rama Chandra Murthy vs.
Syed Jalal [(2017) 13 SCC 174] (Paragraphs
15 to 17) describe the statutory scheme and
confirm that an aggrieved person disputing an
entry must approach the forum under Section
6. The latter decision emphasises the
prescribed limitation period (Paragraph 17).
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14.11 In Nishat Kasar (Paragraph 60), the Co-
ordinate Bench held that the Tribunal has no
power to strike down a notification or
corrigendum. That decision is followed. It does
not, however, remove the Tribunal’s jurisdiction
to determine whether the property is Wakf
property. This Court has already considered its
own power to examine the corrigendum under
Point (i). If the Tribunal finds that the property
is not Wakf property, the list can be modified
under Section 6(4).
14.12 The decisions are reconciled by Andhra
Pradesh State Wakf Board. The Hon'ble
Supreme Court held that the observation in
Anis Fatma Begum concerning Article 226
was obiter (Paragraph 124), and that Rashid
Wali Beg did not deal with the writ court’s
jurisdiction (Paragraph 123). The later decision
governs the constitutional jurisdiction of this
Court, while Rashid Wali Beg and Anis Fatma
Begum govern the scope of Sections 83 and
85. Nishat Kasar recognises both this Court’s
power to examine the corrigendum and the
Tribunal’s jurisdiction over the Wakf character
of property.
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14.13 The existence of an effective statutory remedy
ordinarily weighs against exercise of writ
jurisdiction.
14.14 This Court answers Point No. (ii) by holding that
the dispute concerning the nature and character
of the subject property, and the reliefs
dependent upon it, falls within the jurisdiction
of the Wakf Tribunal under Sections 6, 7, 83
and 85 of the Act. Section 85 does not take
away this Court’s jurisdiction under Articles 226
and 227. However, in view of the effective
statutory remedy and the disputed factual
questions, the petitioners should avail that
remedy. This Court declines to exercise its writ
jurisdiction on those disputed facts.
15. Answer to Point No. (iii): Whether, in the facts
and circumstances of the case, the writ petition
is liable to be dismissed, reserving liberty to
the petitioners to institute appropriate
proceedings before the competent Wakf
Tribunal, without expressing any opinion on the
merits of the rival claims?
15.1 Sri. Sunil Kumar Patel, learned counsel for the
petitioners, submits that the Wakf Board had no
power to issue the corrigendum under Section
5(2) without a survey under Section 4 and
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compliance with Sections 5 and 6. He contends
that private land cannot be included in a Wakf
list through a corrigendum without inquiry into
its history and dedication, and that the
corrigendum issued 45 years after the
notification dated 07.06.1965 is expropriatory.
15.2 Relying on Andhra Pradesh State Wakf
Board (Paragraphs 158 to 174), he submits
that a decision affecting rights must follow the
prescribed procedure, reasons and natural
justice, and that an errata can correct clerical
or arithmetical errors but cannot enlarge a
notification.
15.3 He relies on Salem Muslim Burial Ground
Protection Committee (Paragraphs 25 to 28
and 31 to 35), Syed Jalal (Paragraphs 11, 15
to 17 and 20) and Nishat Kasar (Paragraphs
28 to 58) to contend that survey and inquiry
are necessary, a notification is not conclusive
proof of Wakf character, and the Board cannot
enlarge a published list through a corrigendum.
15.4 On facts, he relies on the deed dated
04.02.1981, conversion order dated
20.06.1983, layout approval dated 20.10.1992,
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correction of the survey number on 16.06.2016
and the District Wakf Advisory Committee’s
observations in 2000. He seeks setting aside of
the corrigendum and delivery of the land.
15.5 Smt. Anuradha S.R., learned Senior Counsel for
respondents No.1 and 2, submits that the
survey shows burials over the whole of
Sy.No.56/1A, that the buried bodies cannot be
exhumed, that the petitioners’ deed relates to
Sy.No.55/1A, and that the conversion and
layout approvals were not acted upon. She
further submits that the dispute concerns title
and that the reliefs cannot be granted after the
passage of time.
15.6 Relying on Mujawareen Nazreen Dargah
Committee v. KSBW [WP No.5369/2015], she
submits that a corrigendum may supply
boundaries to a property already notified
without introducing new land. Relying on
Punjab Wakf Board v. Raj Rani (Dead)
through LRs [Civil Appeal No.295/2005]
(Paragraph 14), she submits that the
notification is presumed genuine under Section
81 of the Evidence Act.
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15.7 Answers to points (i) and (ii) hold that disputed
facts should not be tried in writ proceedings
and that the Tribunal is the appropriate forum
for the dispute concerning Wakf character. The
petitioners nevertheless contend that the
validity of the corrigendum presents a pure
question of law which this Court should decide
independently.
15.8 In Andhra Pradesh State Wakf Board , the
Hon'ble Supreme Court held that the Board’s
determination of Wakf character is “ not purely
an administrative function ” and must follow the
inquiry prescribed by Section 40 (Paragraph
163). It held that a notification cannot be
issued unilaterally without reasons, and that a
prescribed procedure must be followed
(Paragraphs 163, 165 and 168). It further held
that “ only arithmetical and clerical mistakes
could be corrected and the scope of the
notification could not be enlarged by virtue of
an errata notification ” (Paragraph 173).
15.9 The same principles emerge from Salem
Muslim Burial Ground Protection
Committee (Paragraphs 32 and 35), which
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holds that survey is a precondition and a
notification is not conclusive proof of Wakf
character; Syed Jalal (Paragraph 16), which
describes the Section 4 inquiry as a formal
inquiry; and Nishat Kasar (Paragraphs 48, 52,
57 and 58), which holds that the Board cannot
modify a published list after the prescribed
period or use a corrigendum to add new
property.
15.10 The difficulty lies in applying those principles to
the present property. The petitioners contend
that the corrigendum introduced Sy.No.56,
which was not included in the 1965 list.
15.11 The original list is described as covering
Sy.Nos.55/1 and 55/2 of Chikkabettahalli,
whereas the petitioners’ land is described as
situated in Jarakabande Kaval village. The
documents and their relationship to the land
require examination.
15.12 The identity of the petitioners’ land is also
disputed. Their deed refers to Sy.No.55/1A; the
survey-number correction was made in 2016
during the pendency of the present writ petition
on their application. The petitioners themselves
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rely on the District Wakf Advisory Committee’s
observation in 2000 that Sy.No.55/1 was the
registered graveyard. This Court cannot
determine whether the corrigendum covers the
petitioners’ land without first determining which
land they hold.
15.13 Even if the corrigendum were quashed, the
dispute would not end. The respondents
contend that the whole of Sy.No.56/1A has
been used as a kabristan, with tombstones
dating to 1957 and 1959. Section 3(r)(i)
recognises Wakf by user, and Salem Muslim
Burial Ground Protection Committee
(Paragraph 25) states that Wakf character may
be presumed from long use. Quashing the
notification would not determine that claim.
15.14 Annexure-L, dated 17.10.2019, is a separate
notification issued under Section 5(2), as
amended in 2013. It is not a corrigendum. Its
validity depends on the survey and inquiry
undertaken, notice to affected persons and the
identity of the property included. The survey
records have not been placed before this Court.
Under Sections 6(1) and 7(1), the Tribunal is
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the forum for challenging the list. Setting aside
the corrigendum while leaving Annexure-L
intact would not grant the petitioners the
complete relief sought in prayers (b) and (c).
15.15 Prayers (d) and (e), seeking removal of burials
and restraint against respondents No.2 and 3,
likewise depend on proof of ownership,
possession and the identity of the land. They
cannot follow merely from quashing the
corrigendum. An order for removal of graves
before determination of rights would be
irreversible if made wrongly.
15.16 The respondents’ objection based on delay does
not independently warrant dismissal. The
petition was filed in 2013, within about three
years of the corrigendum, and has remained
pending. The record does not show that the
petitioners caused the delay. However, the
passage of time and continuing burials are
relevant to the relief that can safely be granted
without a trial.
15.17 The petitioners emphasise that the corrigendum
was issued 45 years after the 1965 notification.
The Hon'ble Supreme Court considered delay in
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Andhra Pradesh State Wakf Board
(Paragraph 171), and Nishat Kasar (Paragraph
60) also refers to a corrigendum issued nearly
46 years after the list. The delay bears on the
validity of the corrigendum, but does not
establish the identity or ownership of the land.
15.18 The conversion order dated 20.06.1983 and
layout approval dated 20.10.1992 stand on the
same footing as the deed. Whether they relate
to Sy.No.56/1A or Sy.No.55/1A depends on the
identity of the land. The respondents dispute
that a layout was formed.
15.19 The writ petition could be kept pending, but it
has remained pending since 2013 and the
disputed facts cannot be resolved here. Nor can
the legal issue be decided by assuming that the
petitioners’ land is Sy.No.56/1A, when that very
identity is disputed. No part of prayers (b) to
(e) can be granted without determining those
facts.
15.20 The Tribunal can examine the survey records,
title documents and evidence concerning the
burials, and determine whether the property is
Wakf property and whether the list requires
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modification. The petitioners’ legal challenges
to the corrigendum and Annexure-L remain
available before that forum.
15.21 The dismissal will not decide the merits of
either side’s claim. The petitioners’ challenge to
the corrigendum and Annexure-L, and their
claim that the land is not Wakf property, remain
open. The respondents’ claim that the land is a
Wakf burial ground by long user and that the
deed relates to Sy.No.55/1A also remains open.
This Court has not determined what land was
conveyed under the deed.
15.22 This Court answers Point No. (iii) by holding
that the writ petition is liable to be dismissed,
reserving liberty to the petitioners to institute
appropriate proceedings before the competent
Wakf Tribunal. The dismissal is without
expressing any opinion on the merits of the
rival claims.
16. Answer to Point No. (iv): What Order?
16.1 The order has to follow from the answers to
Points (i) to (iii). In view of the above, this
Court passes the following:
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ORDER
(i) The writ petition is dismissed . It is made clear
that the dismissal is not a decision on the
merits of any of the rival claims.
(ii) Liberty is reserved to the petitioners to
approach the competent Wakf Tribunal by
instituting appropriate proceedings and seeking
the same or similar reliefs before the Wakf
Tribunal. The Petitioners would be entitled to
the benefit of section 14 of the Limitation Act,
for the time spent in prosecuting the present
writ petition.
(iii) This Court has not expressed any opinion on
the merits of the matter. All these questions are
for the Tribunal, on the evidence led before it.
(iv) The survey report dated 06.08.2026 shall
remain on the record of this petition, and either
side may obtain certified copies of it and rely
on it before the Wakf Tribunal, which shall be
considered subject to the applicable principles
of Law of Evidence.
This Court has been assisted by Mr. Sourav,
Law Clerk, in the formulation of this
Judgement.
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Verified
(SURAJ GOVINDARAJ)
JUDGE
PRS
List No.: 1 Sl No.: 67