Telangana High Court
Chanavalli Krishna Murthi vs The Telangana State Waqf Board on 17 April, 2026
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION NO.16121 OF 2020,
WRIT PETITION NO.16127 OF 2020,
WRIT PETITION NO.16129 OF 2020
AND
WRIT PETITION NO.16130 OF 2020
DATED : 17.04.2026
WRIT PETITION NO.16121 OF 2020
Between:
Chanavalli Krishna Murthi and 60 others
... Petitioners
AND
The Telangana State Waqf Board
represented by its Chief Executive
Officer, Razzack Manzil, Opposite
Public Gardens, Nampally, Hyderabad
and 17 others
... Respondents
COMMON ORDER
W.P.No.16121 of 2020 is filed seeking a Writ of Mandamus
declaring the Gazette Notification No.7-A dated 16.02.1989 issued by
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
2
respondent No.1 to the extent it includes the lands of the petitioners i.e.,
Ac.14.39 guntas in Sy.No.49, Ac.17.04 guntas in Sy.No.62, Ac.14.06
guntas in Sy.No.65, Ac.13.06 guntas in Sy.No.66, Ac.7.01 guntas in
Sy.No.101, Ac.9.25 guntas in Sy.No.152, Ac.15.16 guntas in Sy.No.153,
Ac.18.24 guntas in Sy.No.154, Ac.7.21 guntas in Sy.No.158, Ac.6.00
guntas in Sy.No.159, Ac.3.00 guntas in Sy.No.168, Ac.22.20 guntas in
Sy.No.169 and Ac.21.37 guntas in Sy.No.170 of Aloor-II village,
Chevella Mandal, Ranga Reddy District at Sl. No.3354, as illegal,
arbitrary, unconstitutional and in violation of principles of natural justice
and consequently to set aside the same; and also declaring the Memo
dated 04.12.2019 in Proceedings No.L/1997/2019, L/664/2018,
L/661/2018, L/1983/2019, L/1984/2019, L/1988/2019, L/615/2018,
L/623/2018, L/1993/2019, L/1995/2019, L/613/2018, L/1992/2019,
L/1991/2019, L/1989/2019, L/1986/2019, L/1985/2019, L/1990/2019,
L/1996/2019, L/1994/2019, L/662/2018 and L/1987/2019 issued by
respondent No.4 as illegal, arbitrary, unconstitutional and in violation of
principles of natural justice and consequently to set aside the same and
to direct respondent No.4 to issue occupancy rights certificate under the
provisions of the Telangana Abolition of Inams Act, 1955 to the
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
3
petitioners in respect of their respective claims in the aforesaid lands and
to pass such other order or orders.
2. W.P.No.16127 of 2020 is filed seeking a Writ of Mandamus
declaring the Gazette Notification No 7-A dated 16.02.1989 issued by
respondent No.1 to the extent it includes the lands of the petitioners i.e.,
Ac.16.07 guntas in Sy.No.84, Ac.15.29 guntas in Sy.No.85, Ac.7.23
guntas in Sy.No.92, Ac.11.10 guntas in Sy.No.93, Ac.9.10 guntas in
Sy.No.94, Ac.10.39 guntas in Sy.No.95, Ac.5.31 guntas in Sy.No.133,
Ac.1.22 guntas in Sy.No.138/A, Ac.1.20 guntas in Sy.No.138/AA and
Ac.4.14 guntas in Sy.No.211 of Aloor-I Village, Chevella Mandal,
Ranga Reddy District at Sl.No.3354, as illegal, arbitrary,
unconstitutional and in violation of principles of natural justice and
consequently to set aside the same; and declaring the Memo dated
04.12.2019 in Proceedings No.L/614/2018, L/1998/2019, L/625/2018,
L/1999/2019 and L/663/2018 issued by the respondent No.4, as illegal,
arbitrary, unconstitutional and in violation of principles of natural justice
and consequently to set aside the same and to direct respondent No.4 to
issue occupancy rights certificate under the provisions of the Telangana
Abolition of Inams Act, 1955 to the petitioners in respect of their
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
4
respective claims in the aforesaid lands and to pass such other order or
orders.
3. W.P.No.16129 of 2020 is filed seeking a Writ of Mandamus
declaring the Gazette Notification No.7-A dated 16.02.1989 issued by
respondent No.1 to the extent it includes the lands of the petitioners i.e.,
(i) Ac.4.21 guntas in Sy.No.92, Ac.7.19 gutnas in Sy.No.93, Ac.6.22
guntas in Sy.No.94, Ac.8.04 guntas in Sy.No.98, Ac.25.01 guntas in
Sy.No.99, Ac.18.36 guntas in Sy.No.100, Ac.3.36 guntas in Sy.No.101,
Ac.6.00 guntas in Sy.No.116, Ac.5.35 guntas in Sy.No.133, Ac.6.02
guntas in Sy.No.134 and Ac.5.33 guntas in Sy.No.136 of Aloor-I village,
(ii) Ac.4.24 guntas in Sy.No.60, Ac.21.36 guntas in Sy.No.63, Ac.24.00
guntas in Sy.No.64, Ac.3.00 guntas in Sy.No.101, Ac.9.30 guntas in
Sy.No.111, Ac.1.12 guntas in Sy.No.113, Ac.1.07 guntas in Sy.No.114
and Ac.6.23 guntas in Sy.No.115 of Aloor-II village, (iii) Ac.13.12
guntas in Sy.No.68, Ac.9.08 guntas in Sy.No.69, Ac.14.22 guntas in
S.No.78, Ac.15.12 guntas in S.No.79, Ac.10.38 guntas in S.No.80,
Ac.16.26 guntas in Sy.No.81, Ac.13.14 guntas in Sy.No.82 and Ac.11.02
guntas in Sy.No.83 of Aloor-III village, Chevella Mandal, Ranga Reddy
District at Sl.No.3354, as illegal, arbitrary, unconstitutional and in
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
5
violation of principles of natural justice and consequently to set aside the
same; and also declaring the Memo dated 04.12.2019 in Proceedings
No.L/1981/2019, L/624/2018, L/1982/2019, L/657/2018, L/660/2018,
L/656/2018, L/659/2018, L/658/2018, L/654/2018 and L/1978/2019
issued by respondent No.4, as illegal, arbitrary, unconstitutional and in
violation of principles of natural justice and consequently to set aside the
same and to direct Respondent No.4 to issue occupancy rights certificate
under the provisions of the Telangana Abolition of Inams Act, 1955 to
the petitioners in respect of their respective claims in the aforesaid lands
and to pass such other order or orders.
4. W.P.No.16130 of 2020 is filed seeking a Writ of Mandamus
declaring the Gazette Notification No 7-A dated 16.02.1989 issued by
respondent No.1 to the extent it includes the lands of the petitioners i.e.,
Ac.12.36 guntas in Sy.No.52, Ac 10.08 guntas in Sy.No.54, Ac.9.08
guntas in Sy.No.55, Ac.17.28 guntas in Sy.No.56, Ac.8.28 guntas in
Sy.No.57, Ac.9.00 guntas in Sy.No.58, Ac.9.28 guntas in Sy.No.59,
Ac.9.04 guntas in Sy.No.61, Ac.12.36 guntas in Sy.No.62, Ac.10.28
guntas in Sy.No.65, Ac.5.28 guntas in Sy.No.66, Ac.20.17 guntas in
Sy.No.67, Ac.8.24 guntas in Sy.No.73, Ac.14.22 guntas in Sy.No.74,
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
6
Ac.19.31 guntas in Sy.No.75, Ac.3.00 guntas in Sy.No.84, Ac.5.00
guntas in Sy.No.85 and Ac.10.00 guntas in Sy.No.86 of Aloor-III
Village, Chevella Mandal, Ranga Reddy District at Sl.No.3354, as
illegal, arbitrary, unconstitutional and in violation of principles of natural
justice and consequently to set aside the same; and also declaring the
Memo dated 04.12.2019 in Proceedings No.L/661/2018, L/619/2018,
L/612/2018, L/622/2018, L/655/2018, L/617/2018, L/616/2018,
L/620/2018, L/618/2018, L/621/2018, L/1979/2019 and L/1980/2019
issued by respondent No.4 as illegal, arbitrary, unconstitutional and in
violation of principles of natural justice and consequently so set aside the
same and to direct respondent No.4 to issue occupancy rights certificate
under the provisions of the Telangana Abolition of Inams Act, 1955 to
the petitioners in respect of their respective claims in the aforesaid lands
and to pass such other order or orders.
5. The brief facts leading to the filing of these writ petitions are as
follows:
The petitioners claim that their forefathers and thereafter they are
in personal cultivation of the lands in question in Aloor-I,
W.P.Nos.16121, 16127,
16129 & 16130 of 20207
Aloor-II and Aloor-III Villages for decades together. It is
submitted that the forefathers of some of the petitioners are the protected
tenants within the meaning of the Telangana Tenancy and Agricultural
Land Act, 1950 and this is reflected in the khasra pahani as ‘rakshita
kouldar’. It is stated that forefathers of some of the other petitioners
were ordinary tenants. Petitioner No.18 in W.P.No.16130 of 2020 claims
that his forefathers as well as the forefathers of other petitioners were in
personal cultivation of the land on the crucial date under the Telangana
Abolition of Inams Act, 1955 i.e., 01.11.1973 and that the same is
reflected in the corresponding pahanies of 1973-74 and in the immediate
preceding year (1972-73) as well as the succeeding year (1974-75) and
after their lifetime, their legal heirs and family, right up to the present
generation, consisting of the petitioners and their family members have
continued to be in personal possession and cultivation. It is stated that in
view of the above factual position, the petitioners are entitled to be
registered as occupants under Sections 7 and 8 of the Telangana
Abolition of Inams Act, 1955 and therefore, they applied for
‘Occupancy Rights Certificate’ (ORC) to respondent No.4 under Section
10 of the said Act read with Rule 5 of the Telangana Abolition of Inams
W.P.Nos.16121, 16127,
16129 & 16130 of 20208
Rules, 1975 in March, 2018. However, their applications were rejected
by respondent No.4 vide Memo dated 04.12.2019 (Impugned Memo) on
the ground that the subject land is Waqf property, covered in the Gazette
Notification issued under Section 5(2) of the Waqf Act, 1954 by the
respondent No.1/Waqf Board on 16.02.1989 at Sl. No.3354.
6. It is submitted that the memo refers to a report dated 08.03.2018
of respondent No.5 (MRO) which acknowledges the fact in the pahani
for the year 1973-74, that the petitioners and their forefathers were
recorded as occupants for the extents mentioned therein and that they are
in personal cultivation, i.e., on the crucial date and even as the date of
the report. It is submitted that the petitioners came to know about the
existence of the Gazette Notification dated 16.02.1989 for the first time
only through the Memo dated 04.12.2019. It is stated that the Gazette
Notification at Sl. No.3354 (‘Impugned Gazette Notification’) shows a
total extent Ac.1294.09 guntas in various survey No.s in Aloor-I, Allor-
II and Aloor-III Villages as property of the Waqf named Hazrath
Makhdoom Biyabani and graveyard which includes the land in question
in all these writ petitions. The petitioners claiming to be the farmers and
dependent on the subject land for their livelihood, are aggrieved by the
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
9
rejection of their applications for ‘Occupancy Rights Certificate’ as it
effectively strips them of any right over the land and they are now
vulnerable to be dispossessed at any time. It is submitted that if they are
deprived of their land, they cannot avail welfare schemes even on the
basis of Pattedar Passbooks. Therefore, challenging the Gazette
Notification dated 16.02.1989 and also the Memo dated 04.12.2019,
these Writ Petitions are filed.
7. Learned counsel for the petitioners, while reiterating the
submissions made in the writ affidavit, raised the following grounds
against the impugned Gazette Notification No.7-A dated 16.02.1989.
(1) Statutory prerequisite of survey/enquiry has not been fulfilled.
It is submitted that before issuance of a Gazette Notification under
Section 5(2) of the Waqf Act, 1954, a survey/enquiry by the Waqf
Commissioner under Section 4(3) of the Waqf Act has to be conducted
and thereafter the report of the Commissioner along with list of
properties has to be submitted to the State Government under Section
5(1) of the Waqf Act which, thereafter has to verify the same and issue
the Gazette Notification notifying the waqf properties. It is submitted
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
10
that the survey therefore has to be a valid survey through a detailed
formal enquiry with due application of mind by the Survey
Commissioner to find out at the grass root level, as to which properties
are waqf properties and it is sine qua non for a valid survey report to be
prepared and it forms the basis for the notification under Section 5(2) of
the Waqf Act and is not merely an informal enquiry. It is submitted that
proper survey shall indicate the nature of the enquiry done, dates on
which it was done, details of witnesses summoned and examined, details
of summons/notices issued, details of documents examined, details of
public records summoned for examination etc., as held by a Division
Bench of this Court in the case of Kolachi Ram Reddy vs. State of
A.P. 1 and also in the case of Gowra Reddy Vs. Govt. of A.P. 2.
Learned counsel for the petitioners, while reiterating the above
submissions, stated that the very fact that the Survey Commissioner has
been given wide powers of a Civil Court under Section 4(4) of the Waqf
Act shows that the survey contemplated ought to be thorough and
detailed, but, in the present case, there was no survey/enquiry conducted
by the Survey Commissioner as contemplated under Section 4(3) of the
1
2024 SCC Online TS 684
2
2002 SCC Online AP 16
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
11
Waqf Act. It is submitted that the survey report titled as “proforma for
survey of Waqf properties” (which is filed along with the counter filed
by the Waqf Board) does not indicate any details of enquiry/survey that
was purportedly conducted. It is further submitted that no other
document evidencing conduct of a detailed survey is produced by the
Waqf Board. It is stated that the survey is said to have been done in the
year, 1966 while in the counter affidavit, it is stated as 1966-67.
Therefore, according to the learned counsel for the petitioners, the Waqf
Board itself does not know the dates of survey. Therefore, the
presumption to be drawn is that there was no survey conducted. Further,
it is submitted that there is discrepancy in the details of the lands
mentioned in the survey report and those mentioned in the impugned
Gazette Notification. Therefore, the statutory prerequisite of the
survey/enquiry was not fulfilled. Therefore, according to the petitioners,
the consequential impugned Gazette Notification is vitiated and ought to
be set aside.
(2) Long gap between purported survey and impugned Gazette
Notification.
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
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It is submitted that the year in which the alleged survey is
conducted is stated to be the year 1966, whereas the impugned Gazette
Notification was issued on 06.02.1989 i.e., after a long gap of 23 years.
It is submitted that though there is no time limit prescribed under the
Waqf Act, 1954 for issuance of notification after survey, the settled law
is that statutory power has to be exercised within reasonable time.
Therefore, according to the learned counsel for the petitioners, the gap of
23 years between the survey and issuance of notification vitiates the
Impugned Gazette Notification. In support of this contention, the learned
counsel for the petitioners placed reliance upon the following judgments.
(i) M/s. Bhagyanagar Investments Trading Pvt. Ltd vs. Sub-
Registrar3.
(ii) Munawar Sultana Vs. Gosula Ramulu4.
(3) No notice to the occupants (petitioners) at the time of purported
survey.
3
W.P.No.9378 of 2009 dt.06.02.2012 and W.A.No.1010 of 2012 dt.07.11.2013
4
2023 SCC Online TS 3820
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
13
Without prejudice to the above two grounds on which the
Impugned Gazette Notification is challenged and assuming but not
admitting that there was a survey/enquiry, it is submitted that the survey
itself is vitiated due to violation of principles of natural justice i.e.,
absence of notice to the occupants of lands or notices to such of the
persons whose rights are likely to be affected. Learned counsel for the
petitioners placed reliance upon the following judgments.
(i) A.P. State Wakf Board Vs. Gowra Reddy 5, upheld by the
Hon’ble Supreme Court in SLP in CC 12010-12015 of 2012
dated 27.02.2012.
(ii) A.P. State Wakf Board Vs. Hyderabad Archdioceses 6,
upheld by Hon’ble Supreme Court in SLP in CC 19119-19122
of 2015 dated 09.01.2017.
(iii) M/s. Bhagyanagar Investments Trading Pvt Ltd., Vs.
Sub-Registrar (3 supra).
5
W.A.No.745 of 2002 dt.21.03.2011
6
2010 SCC Online AP 1227
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
14
All the above three judgments (3, 5 and 6 supra) are followed and
applied in common order dated 11.02.2021 in W.P. No.5938 of
2008 and batch which was upheld in the common judgment dated
12.11.2021 in W.A. No.318 of 2021 and batch. It is submitted that
the SLP filed against the above judgment has been dismissed by
the Hon’ble Supreme Court vide order dated 26.11.2024.
(iv) Kolachi Ram Reddy Vs. State of A.P. (1 supra)
Learned counsel for the petitioners further submitted that though
the survey report filed by the Waqf Board itself states that the local
people are living for generations together as kouldars (tenants) in the
subject land, yet no notice was ever issued to any of them and therefore,
the survey report is vitiated and consequent Impugned Gazette
Notification is liable to be set aside. As regards the contention of the
Waqf Board that there is no notice required to be issued and that public
notice was issued by DHAPDA SATTI (beat of tom tom/drum), it is
submitted that these contentions are untenable in law. It is stated that the
Waqf Board is taking contrary stands, that is on one hand, it states that
no notice is required to be given and on the other hand, it states that the
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
15
notice was issued by beat of tom tom/drum. Therefore, according to the
learned counsel for the petitioners, the contention of the respondents that
notice was issued by beat of drum is thus concocted in the counter
affidavit only to cover up the infirmity. It is stated that the said method
of issuance of notice i.e., by beat of tom tom by the survey
commissioner is not a recognized mode of issuing notice under any
statute or rules and further that no evidence has been placed before the
Court that there was a public notice by tom tom.
(4) Waqf Board failed to carry out its statutory duty under Section
5(2) of the Waqf Act, 1954.
It is stated that without prejudice to the above contentions under
Section 5(2) of the Waqf Act, 1954, the Waqf Board is statutorily
obligated to examine the report of the Survey Commissioner by duly
applying its mind before publishing the lists of waqfs. In support of this
contention learned counsel for the petitioners placed reliance upon the
following judgments.
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
16
(i) Salem Muslim Burial Ground Protection Comm. Vs.
State of T.N 7.
(ii) Gowara Reddy Vs. Government of A.P. (2 supra).
It is submitted that in the present case, the Waqf Board has not
applied its mind to the purported survey report, because if it had applied
its mind, the absence of enquiry and absence of notice to the petitioners’
predecessors would have become obvious. It is submitted that the Board
has mechanically accepted and published the impugned list in 1989
based on the alleged survey report of 1966-67, i.e., admittedly after a
long gap of 23 years.
(5) Violation of Article 14 of Constitution of India.
It is submitted that a vast extent of Ac.1294.09 guntas covering
three different villages is being claimed as dedicated to a dargah and
graveyard which is peculiar since the pahanies also do not reflect the
name of the Waqf i.e., Hazrath Makhdoom Biyabani and graveyard even
under the pattadar column. It is further submitted that the pahanies show
the names of different individuals as inamdars for the three villages i.e.,
7
TN (2023) 16 SCC 264
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
17
Maqdum Momuddin (Aloor-I), Saheb Hussain (Aloor-II) and
Sameenullah and Hasanullah (Aloor-III) showing that lands were held as
inam in their individual capacity and it is not service inam as claimed by
the Waqf Board and therefore, there is total non-application of mind and
arbitrariness apparent on the face of the Gazette Notification and reflects
violation of Article 14 of the Constitution of India.
(6) The Impugned Gazette Notification cannot bind the
petitioners/their predecessors.
Without prejudice to all the above contentions and in the
alternative, it is submitted that even if the Impugned Gazette
Notification is sustainable under Section 6 of the Waqf Act, 1954, the
Impugned Gazette Notification would be final and binding, after one
year of its issuance, only on the Waqf Board, the mutawalli of the Waqf
and any person interested in the Waqf, if they did not bring a suit within
that time to question its contents but not on any other person/persons. It
is submitted that since the petitioners are not the persons who are
interested in the Waqf and they were not served with any notices prior to
or at the time of alleged survey, it cannot affect the petitioners’ rights
over the subject property in any manner. It is submitted that as such, the
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
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petitioners’ rights to be issued ORC, cannot be denied or curtailed by
citing the impugned Gazette Notification. In support of the same,
learned counsel for the petitioners placed reliance upon the following
judgments.
(i) Board of Muslim Wakfs Vs. Radha Kishan8.
(ii) Punjab Wakf Board Vs. Gram Panchayat9.
It is further submitted that this position holds good even after the
enactments of the Waqf Act, 1995 and the amendment of Section 6 of
the said Act in 2013, wherein the words “any person interested therein”
have been replaced by the words “any person aggrieved”. In support of
this contention, the learned counsel for the petitioners placed reliance
upon the following judgment.
(i) Munawar Sultana Vs. Gosula Ramulu (3 supra)
(7) Writ Petition is the only appropriate remedy for the petitioners.
The Waqf Tribunal and/or the Appellate Authority under the Inams
Abolition Act are not proper efficacious remedies.
8
(1979) 2 SCC 46
9
(2000) 2 SCC 121
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
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It is submitted that since there is (i) violation of principles of
natural justice, (ii) failure to carry out statutory obligation (survey and
examination of report) and (iii) there is violation of Article 14 of the
Constitution of India; the alleged alternative remedy of approaching the
Waqf Tribunal or the Appellate Authority under the Inams Abolition Act
is not available. It is submitted that there is no bar to the entertainability
of the present writ petition. It is submitted that several writ petitions on
similar issues have been entertained by this Court and upheld by the
Hon’ble Supreme Court. In support of his above contention, the learned
counsel for the petitioners placed reliance upon the following
judgments:-
(i) L.Chandra Kumar Vs. Union of India and others10
(ii) Board of Muslim Wakfs Vs. Radha Kishan (8 supra)
(iii) Punjab Wakf Board Vs. Gram Panchayat (9 supra)
(iv) Rashid Wali Beg Vs. Farid Pindari 11
10
(1997) 3 SCC 261
11
(2022) 4 SCC 414
W.P.Nos.16121, 16127,
16129 & 16130 of 202020
It is further submitted that in the present writ petition, the
question is not whether the subject property is Waqf property or not and
the validity/effect of muntakhab relied upon by the Waqf Board and that
the petitioners are not seeking adjudication of those issues. It is
submitted that the limited challenge in these writ petitions is to the
legality of the impugned Gazette Notification dated 16.02.1989 within
the parameters of public law i.e., compliance with statute, compliance
with principles of natural justice and non-arbitrariness. Therefore,
according to the learned counsel for the petitioners, writ petition is the
only appropriate remedy available to the writ petitioners. It is further
submitted that there is no provision in the Waqf Act, 1954 to challenge
the notification issued under Section 5(2) of the Waqf Act before the
Waqf Tribunal. He placed reliance on the following judgments in
support of this contention.
(ii) Gosula Ramulu Vs. A.P. Wakf Board13.
12
(2019) 4 SCC 698
13
2017 SCC OnLine Hyd 61
W.P.Nos.16121, 16127,
16129 & 16130 of 202021
(8) Against the impugned Memo dated 04.12.2019 and that it
deserves to be set aside since it is based solely on the impugned
Gazette Notification, the following submissions were advanced.
It is submitted that the only ground on which the petitioners’ ORC
applications were rejected by the RDO vide the Impugned Memo dated
04.02.2019, is the inclusion of the subject property in the impugned
Gazette Notification and it is submitted that since the impugned Gazette
Notification deserves to be set aside for the reasons mentioned above,
the impugned Memo dated 04.02.2019 also deserves to be set aside and
the matter needs to be remanded to the file of the RDO for
reconsideration of the petitioners’ applications for issuance of ORCs
without reference to the impugned Gazette Notification.
8. The learned counsel for the petitioners thus prayed that all the writ
petitions be allowed.
9. The learned Senior Counsel, representing the learned Standing
Counsel for Waqf Board has opposed the contentions raised by the
learned counsel for the petitioners and placed reliance upon the
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
22
averments made by the Waqf Board in its counter affidavit and has
advanced the following arguments:
(1) The subject land is a Service Inam dedicated to Dargah, Hazrat
Makhdoom Biyabani and Graveyard.
The learned Senior Counsel submitted that the subject land is part
of an extent of Ac.1,229.09 guntas in various survey numbers of Aloor-I,
II and II Villages, Chevella Mandal, Ranga Reddy District granted in
favour of certain Muttawalli’s for rendering service to Darga, Hazrat
Makhdoom biyabani and the said fact is recorded in the Munthakhab as
per the proceedings of the Inam Department of the Government of
Hyderabad in File No.29/56 Atiyath Inam for the year, 1350 Fasli (1940
AD), Taluka Shahabad, Hyderabad District. It is submitted that inams
were granted in favour of certain beneficiaries to render service to (1)
Dargah and Urs and (2) Graveyard and therefore, it is a Service Inam to
institution and the names of the persons mentioned therein were stated to
be grandsons and granddaughter of the 5th generation of muthavallies. It
is submitted that the entire land was divided into 3 lots i.e., Qurra-
1/Aloor-1, Qurra-2/Aloor-2 and Qurra-3/Aloor-3 and statement is made
on the basis of File No.29/56 Atiyath Inam for the year, 1350 Fasli
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
23
(1940 AD). It is stated that the implead petitioners in I.A. No.1 of 2021
in W.P. No.16127 of 2020 and batch claim to be the descendants of the
original mutawallis and that their contention goes to show that the grant
was made subject to rendering service to dargah and therefore, the claim
of the petitioners is false.
(2) Occupancy Rights Certificates (ORCs) cannot be granted to the
Inamdars or the cultivating Tenants as per the provisions of TS
Tenancy and Agricultural Act, 1950.
It is submitted that since the subject land is Mafi Inam/Service
Inam saddled with the burden of the service, the provisions of TS
Tenancy and Agricultural Act, 1950 have no application to the lands
granted. It is submitted that as per the Section 102 of the Act of 1950, it
shall not apply to Service Inam lands and therefore, the writ petitioners
as well as the implead petitioners are not entitled for grant of ORCs
under Sections 4 and 7 of the Inams Abolition Act and can have no
claim of any manner over the subject land and therefore, they have no
locus standi to question the impugned Gazette Notification No.7-A
dated 16.02.1989 issued by respondent No.1. It is submitted that the
impugned Gazette Notification does not, in any manner, affect their
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
24
alleged position as lease holders of the subject land. It is further
submitted that under the proviso to Section 4(1) of the Talangana
Abolition of the Inams Act, 1955, where Inams are held by or for the
benefit of charitable and religious institutions, no person shall be entitled
to be registered as an occupant under Sections 5, 6, 7 and 8 of the said
Act and the concerned institution alone shall be entitled to be registered
as an occupant of all Inam lands, other than the lands specified in
Clauses (a) and (c) of Section 4 (1) i.e., lands set apart for the village
community, grazing lands, mines and quarries, tanks, tank beds and
irrigation works, streams and rivers, lands on which buildings have been
erected, owned by the persons other than the Inamdars. He also referred
to 2nd proviso to Section 4 to submit that it declares that where any
person, other than the concerned charitable or religious institutions, has
been registered as occupants under Sections 5, 6, 7 and 8 after the
commencement of the Telangana Inams Abolition Act (Amendment
Act), 1985, such registration shall and shall be deemed always to have
been null and void and no effect shall be given to such registration.
Therefore, according to the learned Senior Counsel, in respect of service
inams where ORCs are already granted to persons other than the
institutions, they are statutorily deemed to be void ab initio.
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
25
(3) The petitioners and the implead petitioners’ failure to file
declarations under the Land Reforms Act as land holders or
cultivating tenants and also applications for the grant of ORC w.e.f.
01.11.1973 are circumstances which establish their awareness of
lack of any right or legally protected interest over the subject land.
It is submitted that the petitioners or their predecessors have not
filed the declarations under Section 8 of the A.P. Land Reforms (Ceiling
on Agricultural Holdings) Act, 1973 and that in terms of the aforesaid
Act, persons in occupation of land are required to file declarations and
failure to do so entails in a penalty of fine and or imprisonment of 2
years under Section 24 of the said Act. It is submitted that no
explanation is forthcoming from the writ petitioners as to why the
petitioners or their predecessors have not chosen to make applications
claiming to be protected tenants in respect of land of various extents out
of a total of more than Ac.1,200 at the relevant point of time when
protected tenants of the neighboring villages and districts were filing
applications for grant of ORCs under Section 7 of the Inams Abolition
Act. It is submitted that the writ petitioners have submitted the
applications for ORCs only in January, 2019. It is submitted that the
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
26
failure to file any declaration either by the petitioners or their
predecessors indicates that they were aware that they have no claim for
title. It is stated that neither the cultivating tenants nor the Maqtedars and
pattedars have filed declarations under Section 8 of the Land Reforms
Act and that these facts also go to show and indicate that the writ
petitioners were aware that they have no claim for title. It is submitted
that only the lands held by religious, charitable or educational
institutions including the Waqf or lands of a public nature existing on
the date of the commencement of the Act are exempt from its provisions
as per Section 23(b) of the A.P. Land Reforms Act. He further referred
to Joint Inspection Report of DMWO, Hyderabad and DMWO of R.R.
District dated 27.05.2014 to submit that the petitioners and their
predecessors though claim to be in possession of the subject land were
aware that the lands are Waqf lands and their names are only recorded in
the cultivation column and not as pattedars and only few of them are
cultivating the lands and therefore, they cannot now claim any rights
over the property at this distant point of time.
(4) The Waqf Board had been exercising the Rights of ownership
over the subject lands since the beginning.
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
27
It is submitted that a portion or a part of the subject lands was
sought to be acquired by APIIC in the year, 2006 for establishment of an
industrial park and a notification under Section 4(1) of the Land
Acquisition Act, 1894 was published in A.P. Gazette on 02.03.2006 and
in the said notification, the land was described as Waqf property. It is
submitted that even in the draft declaration issued under Section 6, by
the District Collector also referred to the land as Waqf property and
correspondence/communication relating to the acquisition were made
with the Waqf Board. It is submitted that even though all these facts
were within the knowledge of the general public including the
petitioners herein and their predecessors, there were no claims or
protests from them at the time of the land acquisition.
It is further submitted that the Waqf Board has constantly been
complaining to the State authorities, more particularly, the Revenue
authorities about the encroachments of the subject Waqf property and
for issuance of proceedings and for assistance for dispossession of
encroachers in terms of the Waqf Act, 1991. Thus, according to the
learned Senior Counsel, these facts go to show that the Waqf Board has
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
28
been claiming and exercising its rights over the subject property since
the beginning.
(5) Any Dispute as to whether the Inam Land was held by a Dargah
would touch the character of Waqf property which alone can be
decided only by the Waqf Tribunal constituted under Section 83 of
the Waqf Act.
It is submitted that entries in the revenue records reflect the
muthavallies as land holders and names of persons of whom the
petitioners claim to be descendants, are shown as cultivating tenants and
hence the issue as to whether lands are Waqf property or not can only be
adjudicated by the Waqf Tribunal under Section 83 of the Waqf Act,
1985 and not this Court under Article 226 of the Constitution of India.
Therefore, he submitted that these Writ Petitions have to be dismissed.
In support of his contentions, he placed reliance upon the following
decisions:
(ii) Rashid Wali Beg Vs. Farid Pindari (11 supra)
14
(2010) 14 SCC 588
W.P.Nos.16121, 16127,
16129 & 16130 of 202029
(6) Due procedure was followed while issuing Impugned Gazette
Notification notifying the subject lands as Waqf property.
Countering the arguments of the petitioners that no notices were
issued to the concerned parties for conduct of survey under Section 4(3)
of the Waqf Act, it is submitted that entire exercise of survey under
Section 4(3) of the Waqf Act was undertaken between 1966 and 1967
with the assistance of revenue officials and local village officers after
issuing the public notice by DHAPDA SATTI (beating of tom-tom)
which was a recognized mode of publication. It is further submitted that
the lands in question are located in interior villages with poor literacy
and the best means of communications at that period of time would only
be by a beat of drum and that the petitioners or their predecessors failed
to raise any objection at the relevant point of time, thereby
demonstrating acquiescence of having no right, title or legally protected
interest in the property. Therefore, according to the learned Senior
Counsel, the writ petitioners lack any enforceable claim over the lands in
question. He placed reliance on the judgment of the Hon’ble Supreme
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
30
Court in the case of Rai Vimal Krishna Vs. The State of Bihar15 for
the proposition that once mode of service is proved, the onus is on the
persons to prove that they were not aware of the subject matter of notice.
(7) Any irregularities in publication of the Gazette Notification
would not alter the nature of the land being Waqf land.
Learned Senior counsel placed reliance upon the decision of
Hon’ble Supreme Court in the case of V.Aruna Vs. State of
Telangana16 for the proposition that the irregularities in publication of
the Gazette Notification will not change the nature of the land.
(8) The writ petition is not maintainable on the grounds of delay and
laches.
Learned Senior Counsel submitted that the writ petitioners seek to
challenge the Notification No.7-A dated 16.02.1989 issued by the
Secretary of Andhra Pradesh State Waqf Board after lapse of more than
a quarter century and that the petitioners failed to show sufficient cause
for such inordinate and unexplained delay and hence it is hit by delay
and laches. In support of this contention, the learned Senior Counsel
15
(2003) 6 SCC 401
16
2020 SCC online TS 3450
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
31
placed reliance upon the decision of the Hon’ble Apex Court in the case
of Karnataka Power Corporation Ltd. Vs. K.Thangappan 17.
It is further submitted that since the writ petitions touch upon the
nature and character of the subject land, the petitioners have to agitate
their claim before the Waqf Tribunal constituted under Section 83 of the
Waqf Act. Thus, according to the learned Senior Counsel, the writ
petitions are not maintainable and have to be dismissed therefor.
(9) Contention that RDO did not undertake any enquiry under
Section 10 of the Inams Abolition Act and simply decided on the
basis of the entries in the Revenue records is untenable and without
merit.
It is submitted that under Section 10 of the Inams Abolition Act,
an enquiry has to be conducted by the Collector for grant of an ORC and
not by the RDO (Revenue Divisional Officer) and the nature of the land
whether it is Waqf property or not can only be decided by the Waqf
Tribunal. It is further submitted that RDO can only go by the entries in
the revenue records and as per the Gazette Notification, the subject lands
17
(2006) 4 SCC 332
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
32
are Waqf lands as recorded in the Revenue Records. The learned Senior
Counsel also placed reliance upon the decision of the A.P. High Court in
the case of Yusuf Bagum Vs. Waqf Board and ors.18 in support of his
contention that the writ petitioners have to approach the Waqf Tribunal
for a decision on the nature of the subject land. He submitted that
subsequent to the amendment of Section 6 of the Act by the Amendment
Act of 2013, ‘any person aggrieved’ may also approach the Waqf
Tribunal.
The learned Senior Counsel for the respondent Waqf Board also
tried to distinguish the judgments relied upon by the writ petitioners and
submitted that they are distinguishable on facts and law. He therefore
prayed for dismissal of the writ petitions.
10. In reply and rebuttal of the above contentions of the learned
Senior Counsel for the Waqf Board, the learned counsel for the
petitioners submitted that Waqf Board’s contentions regarding the
subject property being Waqf property is untenable and particularly since
the petitioners are not seeking adjudication of the question as to whether
the subject property is Waqf property or not. It is submitted that without
18
(2010) 6 ALD 273
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
33
prejudice to the above contention, the petitioners further deny the
authenticity of the muntakhab as filed. It is submitted that only a
photocopy of the alleged document has been filed and it appears to be a
fabricated document on the face of it because (i) the muntakhab makes
no mention of the alleged dedication 250 years back as stated in
paragraph No.5 of Waqf Board’s counter, (ii) there is discrepancy as to
the date on which the dedication was made, (iii) there is no mention of
survey numbers in the muntakhab, (iv) non-matching of the extents in
muntakhab and gazette notification, (v) non-mention of the purpose of
burial/graveyard and performance of Urs in the muntakhab, which is
otherwise stated in the Survey Report and counter, (vi) none of the
pahanis even make a whisper about the muntakhab.
11. It is submitted that without prejudice to the above contentions and
assuming without conceding that the muntakhab is genuine, it does not
in itself confer title to the Waqf institution because all service inams
were brought within the fold of the Inams Abolition Act by Amendment
Act 29 of 1985 and consequently, all service inams stood abolished and
were vested in the State by virtue of Section 3(1) of the Inams Abolition
Act. It is submitted that even a Waqf institution is required to apply for
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
34
ORC as is evident from the language used in the provisos to Section 4(1)
of the Inams Abolition Act and also as per the proviso to Rule 5 and
Rule 6(3)(b) of the Inams Abolition Rules. He placed reliance upon the
decisions of the Hon’ble Apex Court in the case of S.Mallesh and
others Vs. Government of A.P. 19 in support of his above contention.
12. He also referred to Section 3 of the Telangana Atiyat Enquiries
Act, 1952 to submit that all Muntakhabs are subject to the provisions of
the Inams Abolition Act and the service Inam claimed by virtue of the
muntakhab issued purportedly by the Atiyat authorities ceases to confer
any right to the Waqf institution, since service inams themselves stood
abolished and the subject property stood vested in the State by operation
of Section 3(1) of the Inams Abolition Act. It is submitted that there is
no averment that the Waqf institution has applied for ORC till date. It is
submitted that the subject property was therefore not Waqf property
even as on the date of impugned Gazette Notification in 1989 and by
operation of law, the service inam granted through the alleged
muntakhab also stood abolished and the subject property stood vested in
the State.
19
2009 SCC OnLine AP 726
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
35
13. It is submitted that this Court, in similar circumstances, while
setting aside similar Gazette notifications, has remanded the matter to
the authorities under the Inams Abolition Act to decide the question of
entitlement of ORC.
14. As regards the Waqf Board’s contention regarding the petitioners’
right over the subject property, the learned counsel for the petitioners
submitted that in an application for ORC filed under Sections 4 to 8 of
the Inams Abolition Act, the only requirement to be shown by the tenant
is his occupation over the subject land on the crucial date i.e.,
01.11.1973 and the revenue records have been relied upon to show
continuous possession of the petitioners and their prececessors over the
subject property from decades including on the crucial date and since the
revenue records did not reflect that the subject property was Waqf
property and there was no interference with the possession of the
petitioners nor were any eviction suits filed against them by the Waqf
institution, the question of the petitioners challenging it earlier than the
impugned Memo dated 04.12.2019 does not arise and as soon as they
came to know about it in the year 2019, they have filed the present writ
petitions. It is submitted that the petitioners are poor farmers who relied
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
36
on the land for their livelihood and their property rights have been
deprived by the impugned Gazette Notification and further the Waqf
institution also has not applied for ORC and as such, no vested right of
the Waqf institution is affected. In support of his above contentions, he
placed reliance on the following decisions.
(i) Munawar Sultana Vs. Gosula Ramulu (4 supra)
(ii) Telangana State Waqf Board Vs. Solithro Pvt Ltd.20
(iii) N. Balakrishnan Vs. M. Krishnamurthy 21
(iv) B.T. Purushotthama Rai Vs. K.G. Uthaya 22
15. As regards the Waqf Board’s contentions about the non-
maintainability of the writ petition, the learned counsel for the
petitioners relied upon the judgment of the Hon’ble Supreme Court in
the case of L.Chandra Kumar Vs. Union of India and others (10
supra), wherein the power of judicial review under the Article 226 of the
Constitution of India has been reiterated as the basic structure of the
constitution which cannot be curtailed. It is submitted that even if there
20
2023 SCC OnLine TS 3817
21
(1998) 7 SCC 123
22
(2011) 14 SCC 86
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
37
is an efficacious, alternative remedy, that itself is not bar to entertain the
writ petition if there is inter alia violation of principles of natural justice,
violation of fundamental rights and absence of jurisdiction etc. He
further relied upon the following other judgments in support of his
contentions.
(i) L.Chandra Kumar Vs. Union of India and others (10
supra)
(ii) State of A.P. Vs. A.P. Wakf Board23
(iii) Rashid Wali Beg Vs. Farid Pindari (11 supra)
(iv) Telangana State Waqf Board Vs. Solithro Pvt Ltd. (20
supra)
(v) Board of Muslim Wakfs Vs. Radha Kishan (8 supra)
(vi) Punjab Wakf Board Vs. Gram Panchayat (9 supra)
(vii) Munawar Sultana Vs. Gosula Ramulu (4 supra)
23
(2022) 20 SCC 383
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
38
16. As regards the contentions raised by the respondents regarding the
grounds raised in the Writ Petitions regarding the legal infirmities in the
impugned Gazette Notification, the learned counsel for the petitioners
submitted that the petitioners have statutory right to be issued ORC by
virtue of being the tenants in possession for several decades including on
the crucial date i.e., 01.11.1973. He also tried to distinguish the
judgments relied upon by the learned Senior Counsel appearing for the
Waqf Board as not applicable to the facts of cases on hand.
Findings of the Court:-
17. Having regard to the rival contentions and the material placed on
record, this Court finds that the respondents have raised preliminary
objections as to the maintainability of the writ petition on the grounds of
(i) delay and laches; and (ii) the availability of an alternative remedy
before the Waqf Tribunal under Section 6 of the Waqf Act. Insofar as
the objection relating to delay and laches is concerned, learned counsel
for the petitioners submitted that the petitioners were not aware of either
the survey under Section 4(3) or the notification dated 16.02.1989, and
that it was only upon issuance of the impugned Memo dated 04.12.2019
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
39
that they gained knowledge of the same, following which, they promptly
filed the present writ petitions. In support of the above contentions,
reliance has been placed by the learned counsel for the petitioners on the
judgment of this Court in Telangana State Waqf Board Vs. Solithro
Private Limited (20 supra). The relevant paragraphs of the above
judgment are extracted hereunder for ready reference:-
“23. It is trite law that extraordinary jurisdiction of this Court
under Article 226 of the Constitution of India is discretionary in nature
and question of delay and laches in all kinds of cases would not disentitle
a party to invoke the jurisdiction under Article 226 of the Constitution of
India. It is well settled legal principle that if an order is a nullity, its
validity could be set up whenever and wherever it is sought to be
enforced or relied upon. It is equally well settled legal position that test
while ascertaining the delay, is not of physical running of time and when
circumstances justifying the conduct exists, the illegality which is
manifest cannot be sustained on the sole ground of laches (see Dehri
Rohtas Light Railway Company Limited v. District Board, Bhojpur²). In
Maharashtra Industrial Development v. Tukaram Kana Joshi
Corporation 21, the Supreme Court dealing with the issue of delay in
approaching the Court under Article 226 of the Constitution of India has
held as under:
13. The question of condonation of delay is one of discretion and
has to be decided on the basis of the facts of the case at hand, as
the same vary from case to case. It will depend upon what the
breach of fundamental right and the remedy claimed are and
when and how the delay arose. It is not that there is any period of
W.P.Nos.16121, 16127,
16129 & 16130 of 202040
limitation for the courts to exercise their powers under Article
226, nor is it that there can never be a case where the courts
cannot interfere in a matter, after the passage of a certain length
of time. There may be a case where the demand for justice is so
compelling, that the High Court would be inclined to interfere in
spite of delay. Ultimately, it would be a matter within the
discretion of the Court and such discretion, must be exercised
fairly and justly so as to promote justice and not to defeat it. The
validity of the party’s defence must be tried upon principles
substantially equitable. (Vide P.S. Sadasivaswamy v. State of T.N.
[(1975) 1 SCC 152: 1975 SCC (L&S) 22: AIR 1974 SC 2271],
State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566: AIR 1987
SC 251] and Tridip Kumar Dingal v. State of W.B. [(2009) 1 SCC
768: (2009) 2 SCC (L&S) 119]).
14. No hard-and-fast rule can be laid down as to when the High
Court should refuse to exercise its jurisdiction in favour of a party
who moves it after considerable delay and is otherwise guilty of
laches. Discretion must be exercised judiciously and reasonably.
In the event that the claim made by the applicant is legally
sustainable, delay should be condoned. In other words, where
circumstances justifying the conduct exist, the illegality which is
manifest, cannot be sustained on the sole ground of laches. When
substantial justice and technical considerations are pitted against
each other, the cause of substantial justice deserves to be
preferred, for the other side cannot claim to have a vested right in
the injustice being done, because of a non-deliberate delay. The
court should not harm Innocent parties if their rights have in fact
emerged by delay on the part of the petitioners. (Vide Durga
Prashad v. Chief Controller of Imports and Exports ((1969) 1
SCC 185: AIR 1970 SC 769], Collector (LA) v. Katiji [(1987) 2
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
41
SCC 107: 1989 SCC (Tax) 172 : AIR 1987 SC 1353], Dehri
Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [(1992)
2 SCC 598: AIR 1993 SC 802], Dayal Singh v. Union of India
[(2003) 2 SCC 593 AIR 2003 SC 1140] and Shankara Coop.
Housing Society Ltd. v. M. Prabhakar [(2011) 5 SCC 607: (2011)
3 SCC (Civ) 56: AIR 2011 SC 2161]).
24. The principle laid down in Tukaram Kana Joshi (supra)
has been quoted with approval in Union of India v. N. Murugesan22.
Thus, the issue of delay has to be decided on the basis of facts and
circumstances of each case.
25. In the instant case, in reply to paragraphs 12 and 13 of the
affidavit filed in support of the writ petition, the Wakf Board has taken an
objection with regard to delay and laches. The relevant extract of the
aforesaid reply reads as under:
26. Since the period of one year has been elapsed it is for the
Wakf Tribunal to adjudicate the suit challenging the notification on
merits. The petitioner instead of approaching to Wakf Tribunal
established under Section 83 of the Wakf Act, 1995 directly approached
this Hon’ble Court under Article 226 of the Constitution of India after
more than 14 years from the date of publication of Gazette on the ground
of alleged violation of principles of natural justice which is hit by delay
and latches, as such it is not open to the petitioner to invoke the
extraordinary special original jurisdiction of this Hon’ble Court under
Article 226 of the Constitution of India after more than 14 years from the
date of publication of Gazette, further the issues involved in the present
case are disputed question of fact to be decided and proved at the
appropriate forum, the Wakf Tribunal. As such, the petitioner has got
alternative remedy under Section 83 of the Wakf Act, 1995, as held by the
Hon’ble Supreme Court in Board of Wakf, West Bengal v. Anis Fatima
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
42
Begum [(2010) 14 SCC 588], as such the above writ petition is liable to
be dismissed.
27. The company had purchased the subject lands in an
auction held on 26.12.2013 and 13.08.2014. The sale certificates were
also issued in favour of the company. Thereupon, it initiated attempts to
seek mutation of its name in the revenue records and learnt about the
notification dated 15.11.2001. Thereafter, the writ petition was filed on
05.11.2014. Therefore, in the facts and circumstances of the case, we
hold that the writ petition does not suffer from delay and laches
disentitling the petitioner to invoke the jurisdiction under Article 226 of
the Constitution of India. Accordingly, the third issue is answered.
28. Before proceeding further, it is apposite to take note of
Section 6 of the 1995 Act as it stood prior to Amendment by Amendment
Act No.27 of 2013 dated 01.11.2013.
6. Disputes regarding Wakfs:- (1) If any question arises
whether a particular property specified as Wakf property in the
list of Wakfs is wakf property or not or whether a Wakq specified
in such list is a Shia Wakf or Sunni Wakf, the Board or the
Mutawalli of the Wakf or any person interested therein may
institute a suit in a Tribunal for the decision of the question and
the decision of the Tribunal in respect of such matter shall be
final;
Provided that no such suit shall be entertained by
the Tribunal after the expiry of one year from the date of
the publication of the list of Wakfs:
Explanation:- For the purposes of this section and
section 7, the expression “any person interested therein”,
W.P.Nos.16121, 16127,
16129 & 16130 of 202043
shall, in relation to any property specified as wakf
property in the list of wakfs published after the
commencement of this Act, shall include also every person
who, though not interested in the wakf concerned, is
interested in such property and to whom a reasonable
opportunity had been afforded to represent his case by
notice served on him in that behalf during the course of
the relevant inquiry under Section 4.
(2) Not withstanding anything contained in subsection (1),
no proceeding under this Act in respect of any wakf shall be
stayed by reason only of the pendency of any such suit or of any
appeal or other proceeding arising out of such suit.
(3) The Survey Commissioner shall not be made a party to any
suit under sub-section (1) and no suit, prosecution or other legal
proceeding shall lie against him 32 in respect of anything which
is in good faith done or intended to be done in pursuance of this
Act or any rules made thereunder.
(4) The list of Wakfs shall, unless it is modified in pursuance
of a decision or the Tribunal under sub-section (1), be final and
conclusive.
(5) On and from the commencement of this Act in a State, no
suit or other legal proceeding shall be instituted or commenced in
a court in that State in relation to any question referred to in sub-
section (1).
29. Thus, it is evident that dispute whether or not property is a
wakf property in the list of wakfs and whether the same belongs to Shia
or Sunni wakf, the Board or the Mutawalli of the wakf or any person
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
44
interested therein may institute a suit in a Tribunal for adjudication of
the aforesaid question. Section 6 has to be read with Section 3(k) of the
Act which defines the expression ‘person interested in a wakf’ and reads
as under:
3 (k) “person interested in a wakf” means any person who
is entitled to receive any pecuniary or other benefit from the wakf
and includes-
(i) any person who has a right to workship or to
perform any religious rite in a mosque, idgah,
imambara, dargah, khanqah, peerkhana and
karbala, maqbara, graveyard or any other
religious institution connected with the wakf or to
participate in any religious or charitable
institution under the wakf; 33
(ii) the wakif and any descendant of the wakf and the
Mutawalli;
30. Thus, if provisions of Section 6 and 3(k) of the Wakf Act,
1995, prior to its Amendment, are read in conjunction, it is evident that a
person interested in the wakf alone could have resorted to the remedy
under Section 6 of the 1995 Act. However, subsequently by Amendment
Act No. 27 of 2013 dated 01.11.2013, the words ‘any person interested’
had been substituted by ‘any person aggrieved’. The Supreme Court in
Rashid Wali Beg (supra) dealt with the issue whether suit seeking the
relief of perpetual and mandatory injunction in respect of a property
admitted to be the wakf property before the civil court is maintainable.
The aforesaid issue was answered in the negative and in paragraph 47
and 68, it was held as under:
W.P.Nos.16121, 16127,
16129 & 16130 of 202045
47. The upshot of the above discussion is that the basis of Ramesh
Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf,
(2010) 8 SCC 726 (2010) 3 SCC (Civ) 553] now stands removed
through Amendment Act 27 of 2013. In fact, when Ramesh
Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf,
(2010) 8 SCC 726: (2010) 3 SCC (Civ) 553] was decided,
Sections 6(1) and 7(1) enabled only three categories of persons to
approach the Waqf Tribunal for relief. They are, (i) the Board;
(ii) the mutawalli of the waqf; or (iii) any person interested
therein. However, the Explanation under Section 6(1) clarified
that the expression “any person interested therein” shall include
every person, who, though not interested in the waqf, is interested
in the property. But by Act 27 of 2013 the words, “any person
interested” were substituted by the words, “any person
aggrieved”, meaning thereby that even a non-Muslim is entitled to
invoke the jurisdiction of the Tribunal. Due to the substitution of
the words “any person aggrieved”, Act 27 of 2013 has deleted the
Explanation under 6(1). This amendment has also addressed the
concern expressed in Ramesh Gobindram [Ramesh Gobindram v.
Sugra Humayun Mirza Wakf, (2010) 8 SCC 726: (2010) 3 SCC
(Civ) 553] (in para 21 of the SCC report) whether a non-Muslim
could be put to jeopardy by the bar of jurisdiction, merely
because the property is included in the list of waqfs. We must
point out at this stage that the Explanation under sub-section (1)
of Section 6, as it stood at the time when Ramesh Gobindram
[Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8
SCC 726: (2010) 3 SCC (Civ) 553] was decided, already took
care of this contingency, but was omitted to be brought to the
notice of this Court.
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
46
68. The dichotomy created in some decisions of this Court,
between the properties which are admitted to be waqf properties
and properties which are disputed to be so, is on account of the
misapplication of the two limited questions in Sections 6(1) and
7(1) to the whole of the Act including Section 83. At the cost of
repetition we should point out that Section 83(1) provides for the
determination of any dispute, question or any other matter, (i)
relating to a waqf and (ii) relating to a waqf property. This
prescription cannot be taken to have been curtailed or
circumscribed by Sections 6(1) and 7(1), to come to the
conclusion that the Tribunal will assume jurisdiction only when a
property is disputed to be a waqf property.
31. The decision in Rashid Wali Beg (supra) was considered by the
Supreme Court in State of Andhra Pradesh (Now State of Telangana v.
Andhra Pradesh State Wakf Board 23. The relevant extract of paragraph
105 reads as under:
105. In Rashid Wali Beg, this Court examined all the
previous judgments on the question as to whether any property is
a wakf property or not is triable exclusively by the Wakf Tribunal
but the judgments discussed therein pertained to the invocation of
the jurisdiction of the Civil Court or of the Wakf Tribunal. None
of the judgments dealt with the invocation of the jurisdiction of
the writ court. Board of Wakf, West Bengal v. Anis Fatma Begum
((2010) 14 SCC 588) is again not a judgment arising out of a writ
petition filed before the High Court. It was a case of a suit filed
before the Civil Court, though in Para 7, there is an observation
that all matters pertaining to wakf should be filed in the first
instance before the Tribunal and should not be entertained by the
Civil Court or by the High Court straightaway under Article 226
W.P.Nos.16121, 16127,
16129 & 16130 of 202047
of the Constitution. The observation made by this Court in respect
of invocation of the jurisdiction of the writ court is clearly obiter
as that was not the question arising for consideration.
32. Thus, it is evident that the decision of Supreme Court in Rashid
Wall Beg (supra) does not deal with the invocation of jurisdiction of a
writ court.
33. However, the alternative remedy has been held by Supreme Court
not to operate as a bar in at least three contingencies, namely (1) where
the writ petition seeks enforcement of any of the fundamental rights; (ii)
where there is failure of principles of natural justice; or (ii) where the
orders or proceedings are wholly without jurisdiction or the vires of an
Act is challenged (see Whirlpool Corporation v. Registrar of Trade
Marks, Mumbai 24 and Harbanslal Sahnia v. Indian Oil Corporation).
The Supreme Court in Radha Krishan Industries v. State of Himachal
Pradesh 26, while dealing with exercise of jurisdiction under Article 226
of the Constitution, when an alternative remedy is available to a party,
held as under:
27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to
issue writs can be exercised not only for the enforcement of
fundamental rights, but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a
writ petition. One of the restrictions placed on the power of the
High Court is where an effective alternate remedy is available to
the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise
where:
W.P.Nos.16121, 16127,
16129 & 16130 of 202048
(a) the writ petition has been filed for the enforcement of a
fundamental right protected by Part III of the Constitution; (b)
there has been a violation of the principles of natural justice; (c)
the order or proceedings are wholly without jurisdiction; or (d)
the vires of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the
High Court of its powers under Article 226 of the Constitution in
an appropriate case though ordinarily, a writ petition should not
be entertained when an efficacious alternate remedy is provided
by law.
27.5. When a right is created by a statute, which itself
prescribes the remedy or procedure for enforcing the right or
Constitution. This rule of exhaustion of statutory remedies is a
before invoking the discretionary remedy under Article 226 of the
rule of policy, convenience and discretion.
27.6. In cases where there are disputed questions of fact,
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.
34. The aforesaid view was reiterated with approval in
Maharashtra State Board of Wakfs (supra).
35. In the case in hand, the impugned notification dated
15.11.2001 is void as the same has been issued under the provisions of
the repealed Act. Therefore, the instant case falls within the exceptions
carved out by the Supreme Court in Whirlpool Corporation (supra) and
Harbanslal Sahnia (supra) and the writ petition has rightly been
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
49
entertained, notwithstanding the availability of an alternative remedy.
Therefore, in the facts of the case, it is not necessary to relegate the
petitioner to alternative remedy. Accordingly, the fourth issue is
answered in the affirmative by stating that notwithstanding the
alternative remedy, the writ petition can be entertained.”
18. Further, in the case of Munawar Sultana and others Vs. Gosula
Ramulu and others (4 supra), a Division Bench of this Court has held
as under:
“Issue (2): Whether on the basis of the enquiry report dated 07.08.1965,
a notification after a period of 41 years declaring the subject land to be
wakf property can be issued under Section 5 of the Wakf Act, 1995?
31. Section 4(3) of the 1954 Act does not provide for a time limit
within which the Commissioner after conducting the enquiry, has to
submit the report to the State Government. It is equally true that Section
5 of the Act does not provide for time limit for issue of publication of list
of wakfs. However, the Commissioner of Wakfs and the Wakf Board
exercise the statutory function while preparing the enquiry report and
publishing the same as list of wakfs under Sections 4 and 5 of the Act
respectively. A mere survey carried under Section 4 of the 1954 Act does
not extinguish the rights in a property. It is only on publication of
notification under Section 5(2) of the Act, the rights of a person in a
property are extinguished. Therefore, the statutory powers have to be
exercised within a reasonable period as rights in a property may accrue
after survey which may get extinguished on publication of the survey.
32. Even otherwise, it is trite law that where a statute does not
provide for time limit for doing an act, such an act has to be done within
W.P.Nos.16121, 16127,
16129 & 16130 of 202050
a reasonable time, and what would be reasonable time has to be decided
in the facts and circumstances of the act (See:Meher Rusi Dalal vs.
Union of India [(2004) 7 SCC 362], P.K.Sreekantan vs. P.Sreekumaran
Nair [(2006) 13 SCC 574] and K.B.Nagur vs. Union of India [(2012) 4
SCC 483].
33. The Supreme Court in the State of Andhra Pradesh now the
State of Telangana vs. Andhra Pradesh Wakf Board (2022 SCc OnLine
SC 159) has disapproved the action of issuing an errata notification after
a lapse of 17 years from the date of first notification.
34. In the instant case, the enquiry report was prepared on
07.08.1965 whereas the notification under Section 5 of the Act dated
27.07.2006 has been issued after a period of 41 years. The notification
dated 27.07.2006 extinguishes the rights of the persons in the subject
property. The statutory powers have to be exercised within a reasonable
time. In the instant case, the notification dated 27.07.2006 which has the
effect of extinguishing the rights of individuals in the property has been
issued after an inordinate delay of 41 years for which no explanation has
been offered. The exercise of statutory powers after a period of 41 years
without any explanation for the same cannot be said to be exercise of
statutory powers within a reasonable time and therefore, the same is
vitiated in law. Accordingly, the second issue is answered.
Issue (3): Whether issue with regard to validity of the notification dated
27.07.2006 issued by the Wakf Board can be examined by the Wakf
Tribunal under the then Section 6 of the Wakf Act, 1995 in vogue at the
relevant time?
36. Thus, it is evident that dispute whether or not property is a
wakf property in the list of wakfs and whether the same belongs to Shia
or Sunni wakf, the Board or the Mutawalli of the wakf or any person
W.P.Nos.16121, 16127,
16129 & 16130 of 202051
interested therein may institute a suit in a Tribunal for adjudication of
the aforesaid question. Section 6 has to be read with Section 3(k) of the
Act which defines the expression ‘person interested in a wakf’ and reads
as under:
3 (k) “person interested in a wakf” means any person who
is entitled to receive any pecuniary or other benefit from the wakf
and includes-
(i) any person who has a right to workship or to perform
any religious rite in a mosque, idgah, imambara, dargah,
khanqah, peerkhana and karbala, maqbara, graveyard or
any other religious institution connected with the wakf or
to participate in any religious or charitable institution
under the wakf;
(ii) the wakif and any descendant of the wakf and the
Mutawalli;
37. Thus, if provisions of Section 6 and 3(k) of the Wakf Act,
1995, prior to its Amendment, are read in conjunction, it is evident that
the petitioners are not the persons interested in a wakf. It is pertinent to
mention that at the relevant point of time when the notification was
issued on 27.07.2006, the petitioners could not have availed of the
remedy under Section 6. However, subsequently by Amendment Act
No.27 of 2013 dated 01.11.2013, the words ‘any person interested’ had
been substituted by ‘any person aggrieved’. But, at the relevant time, the
remedy of filing a suit before the Wakf Tribunal was not available to the
petitioners. Accordingly, the third issue is answered in the negative.
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
52
Issue (4): Whether issue with regard to validity of the notification dated
27.07.2006 can be examined in a writ petition under Article 226 of the
Constitution of India?
38. A three-Judge Bench of the Supreme Court in Babubhai
Muljibhai Patel vs. Nandlal Khodidas Barot [(1974) 2 SCC 706] held
that the High Court is not deprived of its jurisdiction to entertain a
petition under Article 226 merely because in considering the petitioner’s
right of relief, questions of fact may fall to be determined. In a petition
under Article 226,the High Court has jurisdiction to try issues both of
fact and law. In paragraph 9, it was held as under:
9. On behalf of the appellant his learned counsel, Mr.
Amin, has at the outset contended that as the dispute between the
parties in this case involved questions of fact, the High Court
should not have entertained the writ petition filed by Respondent
1 but should have referred the parties to a separate suit. This
contention, in our opinion, is not well founded. No plea was
admittedly taken in the return filed on behalf of the appellant in
reply to the writ petition that Respondent 1 should be directed to
seek his remedy 35 (1974) 2 SCC 706 by means of a suit because
of disputed questions of fact. In the absence of such a plea, the
appellant, in our opinion, cannot be heard to say that the High
Court should have relegated Respondent 1 to the remedy of a
suit. Apart from that we find that the term of the appellant as the
President of the municipality would have expired in 1975. The
trial of a suit, in the very nature of things, would have taken
considerable time. Appeal and second appeal would have also
been filed by the unsuccessful party in the case. Had Respondent
1 been directed to seek his remedy by way of a suit, the relief
secured by Respondent 1 even if he had succeeded in the suit
W.P.Nos.16121, 16127,
16129 & 16130 of 202053
would have been wholly illusory because by the time Respondent
1 would succeed in the litigation, the term of the office of the
President would have either already expired or be about to
expire. The appellant in that event would have continued as the
President of the municipality even though he had ceased to enjoy
the confidence of the requisite number of councillors and they
had passed a motion of no confidence against him. The entire
concept of a democratic institution would thus have been set at
naught. We agree with the observations of the High Court that
the purpose underlying the petition would have been completely
defeated in case Respondent 1 had been relegated to the ordinary
remedy of a suit and that such remedy was neither adequate nor
efficacious.
39. The power of this Court under Article 226 of the Constitution
of India can be exercised not only for enforcement of fundamental rights
but for any other purpose as well. In the State of Andhra Pradesh now
the State of Telangana vs. Andhra Pradesh Wakf Board (supra), the High
Court had relegated the parties to an alternative remedy of filing a
regular suit before the Wakf Tribunal. The Supreme Court in paragraph
116 held that the High Court erred in law to relegate the parties to the
statutory remedy. Paragraph 116 reads as under:
116. We find that the High Court has examined the merits
of the contention raised including the documents filed so as not to
accept the contentions of the State. Though the High Court has
expressed the same to be prima facie view, but in fact, nothing
was left to suggest that it was not a final order as far as the State
is concerned with the order of the dismissal of its writ petition.
Even otherwise, we find that the questions raised before this
Court are the interpretation of the statues, the Farmans issued by
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
54
Sovereign from time to time and the interpretation of the
document to the facts of the present case. It is not a case where
any oral evidence would be necessary or is available now. In fact,
that was not even the suggestion before this Court. Since the
question was in respect of interpretation of the statutes and the
documents primarily issued by the Sovereign, the matter needs to
be examined on merits as detailed arguments have been
addressed by learned counsel for the parties. Thus, we find that
the High Court erred in law, in the facts and circumstances of the
case, to relegate the parties to the statutory remedy.
40. An enquiry report as well as the notification were issued in
exercise of statutory powers under Sections 4 and 5 of the Wakf Act. In
the instant case, no disputed question of fact arises for consideration.
Therefore, in the facts and circumstances of the case, we are of the view
that issue with regard to the validity of the notification dated 27.07.2006
which does not depend on determination of any disputed questions of fact
could have been examined by the learned Single Judge in writ petitions
under Article 226 of the Constitution of India. Accordingly, the fourth
issue is answered.”
19. On the other hand, the respondent Waqf Board had relied upon the
decision of the Hon’ble Supreme Court of India in the case of
Karnataka Power Corporation Ltd. Vs. K.Thangappan (17 supra) on
the ground of delay and laches. The relevant para is as under:-
W.P.Nos.16121, 16127,
16129 & 16130 of 202055
“6. Delay or laches is one of the factors which is to be borne in mind by
the High Court when they exercise their discretionary powers under
Article 226 of the Constitution. In an appropriate case the High Court
may refuse to invoke its extraordinary powers if there is such negligence
or omission on the part of the applicant to assert his right as taken in
conjunction with the lapse of time and other circumstances, causes
prejudice to the opposite party.”
20. As regards the delay, the Hon’ble Supreme Court in the case of N.
Balakrishnan Vs. M. Krishna Murthy (21 supra), has held as under:
“11. Rules of limitation are not meant to destroy the right of
parties. They are meant to see that parties do not resort to dilatory
tactics, but seek their remedy promptly. The object of providing a legal
remedy is to repair the damage caused by reason of legal injury. Law of
limitation fixes a lifespan for such legal remedy for the redress of the
legal injury so suffered. Time is precious and the wasted time would
never revisit. During efflux of time, newer causes would sprout up
necessitating newer persons to seek legal remedy by approaching the
courts. So a lifespan must be fixed for each remedy. Unending period for
launching the remedy may lead to unending uncertainty and
consequential anarchy. Law of limitation is thus founded on public
policy. It is enshrined in the maxim interest reipublicae up sit finis litium
(it is for the general welfare that a period be put to litigation). Rules of
limitation are not meant to destroy the rights of the parties. They are
meant to see that parties do not resort to dilatory tactics but seek their
remedy promptly. The idea is that every legal remedy must be kept alive
for a legislatively fixed period of time.
W.P.Nos.16121, 16127,
16129 & 16130 of 202056
12. A court knows that refusal to condone delay would result
foreclosing a suitor from putting forth his cause. There is no presumption
that delay in approaching the court is always deliberate. This Court has
held that the words “sufficient cause” under Section 5 of the Limitation
Act should receive a liberal construction so as to advance substantial
justice vide Shakuntala Devi Jain v. Kuntal Kumar [AIR 1969 SC 575 :
(1969) 1 SCR 1006] and State of W.B. v. Administrator, Howrah
Municipality [(1972) 1 SCC 366 : AIR 1972 SC 749].
13. It must be remembered that in every case of delay, there can
be some lapse on the part of the litigant concerned. That alone is not
enough to turn down his plea and to shut the door against him. If the
explanation does not smack of mala fides or it is not put forth as part of a
dilatory strategy, the court must show utmost consideration to the suitor.
But when there is reasonable ground to think that the delay was
occasioned by the party deliberately to gain time, then the court should
lean against acceptance of the explanation. While condoning delay, the
court should not forget the opposite party altogether. It must be borne in
mind that he is a loser and he too would have incurred quiet a large
litigation expenses. It would be a salutary guideline that when courts
condone the delay due to laches on the part of the applicant, the court
shall compensate the opposite party for his loss.”
This judgment was followed and the principle laid down has been
reiterated in the case of B.T. Purushothama Rai Vs. K.G. Uthaya and
others (22 supra).
21. On the ground of alternative remedy of Waqf Tribunal, the
respondent Waqf Board has relied upon the decision of a Division Bench
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
57
of this Court in the case of Yusuf Bagum Vs. Waqf Board and ors. (18
supra), wherein it was observed thus:
“If it is a service inam the question of the petitioner getting the absolute
title would not arise in view of the proviso to Section 4(1) of the Andhra
Pradesh (Telangana Area) Abolition of Inams Act, 1955. Therefore, even
if the property was initially brought into the custody of the Wakf Board
pending the dispute, the Wakf Board cannot be compelled to abdicate
their duties to protect the property of the Institution in view of Sections
27, 32 and 40 of the Wakf Act. Furthermore, admittedly the petitioner or
her predecessors never filed any declarations under the Andhra Pradesh
Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 or the Urban
Land Ceiling and Regulation) Act, 1976.
The dispute raised in this writ peittion is one of fact. Secondly,
when the land is claimed by the Wakf Board, such dispute has to be
resolved by the Wakf Tribunal constituted under the Wakf Act. The
remedy provided under Section 83(2) of the Wakf Act is the effective
alternative remedy as held by this court in M. Bikshapathi v Government
of Andhra Pradesh [1], Alluddin Charities and Zakath Wakf v Hameed
Ali [2] and Syed Muneer v Chief Executive Officer, A.P. State Wakf
Board [3]. Further, if the relief as claimed is granted it would amount to
compelling the Wakf Board to relinquish their right to manage the wakf
property and also to compel them to abdicate their duty under various
provisions of the Wakf Act. Such a writ cannot be issued by this Court.
The petitioner is, therefore, given liberty to avail the remedy before the
Wakf Tribunal.”
22. Having gone through the decisions relied upon by both the parties,
this Court is inclined to agree with the writ petitioners about the
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
58
maintainability of the writ petition. The Division Bench of this Court in
the case of Yusuf Bagum Vs. Waqf Board and ors. (18 supra) has
considered all the precedents on the issue to come to the conclusion
about the maintainability of the writ petition provided the delay is
properly explained by the petitioners. In this case, though the Waqf
Board claims that the subject land belongs to the Waqf institution and
the possession of the petitioners over the subject land is also
acknowledged in the alleged survey report, it never interfered with the
possession of the petitioners and therefore, there could not have been
any cause of action or occasion for the petitioners to approach any forum
for redressal of their grievance. The petitioners have thus explained the
reasons for the delay in challenging the impugned Gazette Notification
and therefore, the ground raised by the respondents against the
maintainability of the writ petition is rejected. As regards delay as well
as the availability of remedy before the Waqf Tribunal also, a Division
Bench of this Court in the case of Telangana State Waqf Board Vs.
Solithro Private Limited (20 supra) has dealt with the issue extensively
and this Court is thus inclined to hold that the writ petition is
maintainable.
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
59
23. Another angle to be considered on this issue is the service of
notices prior to survey and the respondents have contended that the
notices are served through beat of tom tom. In the survey report also, it
is observed that the subject property is in occupation of several
Kauldhar/tenants. However, in the survey report, there is no reference to
any notice issued to the tenants. In view of the same, it cannot be
presumed that the petitioners were issued notice and that they were
aware of the survey allegedly conducted in 1966-67 or the Gazette
Notification issued by the respondents in the year 1989, i.e., after 23
years of the alleged survey. Further, there was also no action taken by
the Waqf Board to get the petitioners evicted from the land when it is
claiming the subject property to be the Waqf property. Therefore, there
was no action by the respondents necessitating the petitioners to be
aggrieved to challenge the notification. Hence, this Court is of the
opinion that the grounds of delay and latches cannot come in the way of
the petitioners in challenging the notification whenever it has come to
their knowledge. Further delay and latches can never mean to defeat the
cause of substantial justice and Courts are inclined to take a stand
towards upholding the rights of the parties rather than the technicalities
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
60
of delay. The Hon’ble Supreme Court in the case of N. Balakrishnan
Vs. M. Krishna Murthy (21 supra) has clearly held that the words
‘sufficient cause’ should be construed liberally and the acceptability of
the explanation for the delay is the sole criterion and the length of the
delay is not relevant. It is also pertinent to note that even after 3 decades
of issuance of Impugned Notification, the petitioners are continuing their
uninterrupted possession over the subject land and most of the land is
cultivated physically and same is also reflected in the pahanies for the
relevant years. Therefore, the ground of delay is rejected. As regards the
second ground about the alternative remedy before the Waqf Tribunal is
concerned, the petitioners have stated that they are primarily aggrieved
by the impugned Notification because it was the sole basis on which the
Impugned memo was issued by the respondent No.4. It is submitted that
the question before the Court is not whether the subject land is Waqf
land or not but it is whether the notification was issued by following due
process of law. Therefore, according to the learned counsel for the
petitioners, the writ petition is maintainable before this Court and the
petitioners need not approach the Waqf Tribunal for redressal of their
grievance. Section 6 of the Waqf Act reads as under:
W.P.Nos.16121, 16127,
16129 & 16130 of 202061
“The first proviso of Section 6 of the Waqf Act prohibits the entertainment
of any suit by the Tribunal after the expiry of one (01) year from the date
of publication of the list of Wakfs under sub-section (2) of Section 5”
Therefore, the alternative remedy suggested by the learned Senior
Counsel for the Waqf Board is not available to the petitioners. Further
the Waqf Tribunal does not possess the power to declare the notification
as invalid and the challenge in this writ petition is to the validity of
Gazette Notification itself. This issue is also covered by the latest
decision of this Court in the case of Munawar Sultana and others Vs.
Gosula Ramulu and others (4 supra). Therefore, the preliminary
objection with regard to the availability of the alternative remedy is also
unsustainable and is accordingly rejected.
24. Coming to the merits of the Writ Petitions and the contentions of
the petitioners, the first ground is that petitioners and their predecessors
are in possession of the subject property for a very long time particularly
on the crucial date under the Telangana Abolition of Inams Act, 1955
i.e., 01.11.1973. Their names were reflected in all corresponding
pahanies and there has been no challenge to such entries in the revenue
record. Respondent No.1 also has not denied the same in his counter
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
62
affidavit. The only ground raised by the Waqf Board is that it is service
Inam land granted vide File No.29/56 Atiyath Inam for the year, 1350
Fasli (1940 AD), Taluka Shahabad, Hyderabad District issued by
injunction on 20.11.1951. The copy of the Munthakhab is filed at page
Nos.21 to 23 of the counter affidavit filed by the Waqf Board. It is the
Xerox copy in Urdu. The translated copy in English is extracted
hereunder:-
“COPY OF MUNTHAKHAB ISSUED BY THE OFFICE OF THE SECRETARY
TO GOVERNMENT, REVENUE DEPARTMENT (PRELIMINARY ATIYATH
BRANCH)Proceedings Name of Name of the Name of the present claimant What is the
No. of the Taluka person whose with father’s name, residence, relation of
Inam Dept. OR and name is age and occupation etc. the present
the No. of the District recorded in the claimant with
statement of official records the person
Dist. or Inam whose name
Pathrak is recorded in
the official
records.
1. 2. 3. 4. 5.
Filing Taluka SHAIK First lot:- Grandsons
No.29/56 Shahabad
MAKHDOOM ABU MOHAMMED son of and grand-
Atiyath Inam Grandson of Shaikh Mohiuddin daughter of
Medak for the District CLAIMANT No.1
MULLA the fifth
year 1350 F. Hyderabad MASOOD generation
Second Lot:-
SAHEB HUSSAINI
son of Minallah Hussaini
CLAIMANT No.2
with the subordinate sharers
(Shikmi) of KHAJA
HUSSAINI, MUSTAFA
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
63
HUSSAINI brothers, AKBER
HUSSAINI,
SAMADALLAH
HUSSAINI, NOORUDDIN
and MOHIUDDIN BEE
SAANI (second)
Third lot:- SAMULLAH son
of huthiullah CLAIMANT
No.3, with the subordinate
sharer HASSANULLAH
brother.
Details of Maash (Source of Income) Condition of Grant
6. 7.
Details of Maash – Inam Land and Makhta Ibrahim Shahpur alias
Mullaguda situated at Village Aloor, Taluka Shahabad – District
Hyderabad.
Rs.1,784-08-00
886 acres & 2 guntas 246 Bigas CONDITIONAL
OF THE
Rs.1,582-08-00 Rs.202-00-00 PERFORMANCE OF
THE SERVICE OF
First lot possessed by Abu Mohammed alias Mian Saheb Patti Mangal DARGH HAZRATH
MAKHDOOM
508 acres & 12 guntas BIYABANI
with the Assessment of Rs.951-00-00 Qada-Sirrahul-Aziz.
Deduction: 79-11-09 Pan: 47-08-00 Local Fund: 31-03-09
873-04-03
Second lot: Possessed by Akber Hussaini and Samadullah Hussaini and
Saheb Hussaini and Khaja Hussaini and others
377 acres & 30 guntas
with the assessment of Rs.631-08-00Deduction: 91-05-06 Pan: 47-08-00 Local Fund: 27-05-06
540-02-06
Tamarind trees: 12 Nos. Amraee clump: 50trees
W.P.Nos.16121, 16127,
16129 & 16130 of 202064
Sendhi trees: 2000 Nos.
Third lot: Possessed by Samiullah S/o. Muthiullah Patti Chanchalam
246 bigas
with the assessment of Rs.202-00-00Sd/-Syed Zainulabedeen Saheb,
Madadgar AtiyathSd/- Mohd. Ahmed Ali Seghedar
Sd./- Mohd. Sayeeduddin Saheb
10/11/51 A.D.
Final Order Details of enclosures
of Asnaad etc.
8 9
As per the opinion of the Estate of Sarf-e-Khas and the Hon’ble
Committee of Appellate of Government of Hyderabad, the Inam Land
and Makhta Ibrahim Shahpur mentioned in Clumn No.(6) with the
recovery of the fixed pan, within the Old Limits, is restored and
released FOREVER IN FAVOUR of the Claimants mentioned in the
Column No.(4) with the CONDITION of the performance of the
Service of the Dargah at the ratio of third of thirds.
Samadullah Hussaini who has obtained the SANAD from the Hon’ble
High Court, shall perform the Service. The Maash is divided into three
lots from the past, that shall remain continued as it is, other sources of
income shall remain subject to the land. The claimants shall continue to
be benefitted from the Revenue of the Excise (Aabkari) and shall get
the arrears from the date of discontinuation.
Sd/-
Maulvi Ghulam Dastagir Saheb
Superintendent, Atiyath
Sd/-
Janab Syed Ahmed Saheb
Madagar Atiyath
Sd/-
Janab Abid Ali Khan Saheb
Nazim Atiyath
27
W.P.Nos.16121, 16127,
16129 & 16130 of 202065
No. of Execution Branch of District HyderabadForwarded this Munthakhab with endorsement copy for compliance
and execution to the Awal Talukdar (Collector) District Hyderabad,
and to state that while acting according to this order, this Department
be intimated about the result of the Thameel (execution) and the date of
the receipt of the Claimants.
1. Copy forwarded to the Revenue Secretariat of the Govt. for record.
Date: 20th November, 1951 A.D.Sd/-
Janab Syed Ahmed Saheb
Madadgar AtiyathSd/-
Aalijanab Abid Ali Khan Saheb
Nazim Atiyath/TRANSLATED WITHOUT PREJUDICE BY/
(SYED MUSTAFA ALI)
……..
Sunbeam Jobwork Centre
……….
……….
Nampally, Station Road,
HYDERABAD
”
If the above Munthakhab is given effect to, the names of persons in the
above Column should be reflected in pahanies of the subject property.
The copies of sethwar of Aloor-I, II and III and copies of khasra
pahanies for the years 1954-55, 1955-56 to 1957-58 only are filed along
with the counter affidavit. The respondents, however, have not filed
copies of pahanies for any of the years nor are the names of the said
persons recorded in revenue records as pattedars or occupiers or
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
66
possessors or title holders of the subject property. On the other hand, the
petitioners have filed copies of the pahanies for subsequent years,
wherein the names of the forefathers of the petitioners and thereafter the
petitioners are reflected as possessors of the subject land and the
pahanies are up to 2014-15. Therefore, the contentions of the petitioners
that they are in possession of the subject property has not been disproved
by the respondents with any documentary evidence.
25. The next question that arises for consideration is whether the
impugned Gazette Notification dated 16.02.1989 was issued in
accordance with the provisions of the Waqf Act, 1954. The respondents
contend that the subject land is a service Inam. However, it is pertinent
to note that the said expression is not defined under the Waqf Act. In this
context, reference is made to the Section 2(c) and (d) of the A.P.
(Telangana Area) Abolition of Inams Act, 1955, which defines ‘inams’
and ‘inamdar’ as under:
“(c) ‘inam’ means land held under a gift or a grant made by the
Nizam or by any Jagirdar, holder of a Samsthan or other
competent grantor and continued or confirmed by virtue of a
muntakhab or other title deed, with or without the condition of
service and coupled with the remission of the whole or part of the
W.P.Nos.16121, 16127,
16129 & 16130 of 202067
land revenue thereon and entered as such in the village records
and includes–
(i) Arazi maktha, arazi agrahar and seri inam, and
(ii) lands held as inam by virtue of long possession and
entered as inam in the village records :
Provided that in respect of former Jagir areas the expression
inam shall not include such lands as have not been recognized as
inams by Government after the abolition of the Jagirs.”
“(d) ‘inamdar’ means a person holding as inam or a share
therein, either for his own benefit or in trust and includes the
successor in interest of an inamdar, and –
(i) where an inamdar is a minor or of unsound mind or an
idiot, his lawful guardian,
(ii) where an inamdar is a joint Hindu family, such joint
Hindu family.”
Clause (h) defines ‘permanent tenant’ as under:
“(h) ‘permanent tenant’ means a person who, from a date prior
to 10th June, 1950, has been cultivating the inam land on a
permanent lease from the inamdar whether under an
instrument or an oral agreement.”
Clause (j) defines ‘protected tenant’ as under:
“(j) ‘protected tenant’ means the protected tenant as defined in
the Hyderabad Tenancy and Agricultural Lands Act, 1950.”
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
68
26. Reference is made to the provisions of the A.P. (Andhra Area)
Inams (Assessment) Act, 1955, which was applicable to all inams in the
State of Andhra Pradesh, particularly Sections 4 and 5 thereof, which
deal with service Inams and the consequences of their abolition. The
said provisions also recognize the power of the State Government to
resume any Inam in accordance with the rules and orders in force. In this
context, the relevant provisions, Sections 4 and 5 thereof, are extracted
hereunder:-
“4. Presumption in the case of Service Inams:- In the case of an
inam granted for the purpose of any service, it shall be presumed, in the
absence of evidence to the contrary, that the inam consists not merely of
an assignment of land revenue payable in respect of the land but also of
the land.”
“5. Resumption of Service inams:- Nothing contained in this Act
shall be deemed to affect the power of the State Government to resume
any inam in accordance with the rules and orders in force.”
27. Therefore, according to the learned counsel for the petitioners,
even if it is to be accepted that vide File No.29/56 Atiyath Inam for the
year, 1350 Fasli (1940 AD), Taluka Shahabad, Hyderabad District, the
land has been assigned as Service Inam, by virtue of the A.P. (Telangana
Area) Abolition of Inams Act, 1955, the inam gets extinguished unless
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
69
the institution makes an application and is registered as an occupant of
the Inam land under the proviso of Section 4 of the said Act where the
Inams are held by or for the benefit of charitable and religious
institutions. It is only the institution which shall be entitled to be
registered as an occupant of all Inam lands and the individual persons
shall not be entitled to be registered. However in the Kashra Pahanies
filed by the respondent up to 1954-55 i.e., prior to the A.P. (Telangana
Area) Abolition of Inams Act, 1955, the alleged Mutawalis of the
service inams are mentioned as title holders and their names continued
as title holders in the subsequent pahanies as well. Therefore, the entries
in the revenue records cannot be said to be in accordance with the
provisions of Abolition of Inams Act, 1955. It is also observed from the
statement of objects and reasons of the Act VIII of 1955 that the Bill
provided for abolition of all inams other than village service inams and
inams held by religious and charitable institutions. But the title holder
has to be the religious or charitable institution and not the individual
Mutawalis. Hence, the Gazette Notification is not in accordance with
law.
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
70
28. The next question to be decided is whether the Gazette
Notification has been issued in accordance with the provisions of
Section 4 of the Waqf Act, 1954 which prescribed the procedure for
conduct of survey. Section 5 provides for publication of list of Wakfs.
The provisions of Section 4 of the Waqf Act, 1954 have been considered
by a learned Single Judge of this Court in the case of Gowra Reddy Vs.
Govt. of A.P. (2 supra) and it was held as under:-
“27. It is not in dispute that the petitioners have challenged the
validity of the Gazette notification dated 9-2-1989. It is their case that
there is a violation of provisions contained under Section 4 of the Act
inasmuch as no enquiry was conducted by the Survey Commissioner as
required under Section 4 of the Act. In such an event, it is the case of the
petitioners that no suit need be filed as the validity of the notification
itself is in challenge. The Supreme Court has not ruled out the filling of
Writ Petition in all the cases where the notifications were issued. In
Board of Muslim Wakfs case (AIR 1992 SC 1083) (supra), as already
noted above, the Supreme Court held when an enquiry was conducted
and in consequence of such an enquiry, a notification was issued and in
such an event, the challenge cannot be made under Article 226 of the
Constitution of India except on the question of jurisdiction. But, with
regard to the procedure, which out to have been followed, the Supreme
Court did not stipulate any yardstick for challenging such a notification.
It is no doubt true that when a Competent Authority has decided the issue
under the provisions of the Act, it is only to be challenged under the
provisions of the Act and resort cannot be taken to Article 226 of the
W.P.Nos.16121, 16127,
16129 & 16130 of 202071
Constitution of India. But, however, in case when the order passed is
wholly without jurisdiction or the authority lacks the competence or there
is infraction of statutory provisions, it cannot be said that the Writ
Petition is not available to the aggrieved party. In the instant cases, it has
to be seen whether the notification issued under Section 5 of the Act was
preceded by the statutory compliance as stipulated under Section 4 of the
Act.
29. The pre-requisite for publishing the Wakf is an enquiry to
be conducted under Section 4 of the Act and such an enquiry report has
to be forwarded to the State Government, who in turn has to forward the
same to the Wakt Board and the Wakf Board is required to examine the
report and thereafter publish the list of Wakfs in the Official Gazette. If
these requirements were fulfilled, then the contention of the learned
counsel for the Wakf Board and the learned Government Pleader would
be sustainable. When the pre-requisite for publishing the Wakf is not
fulfilled, then the question would remain Whether that can be challenged
under Article 226 of the Constitution of India or in a suit as is sought to
be contended by the learned counsel for the respondents.
30. As held by the Supreme Court in Board of Muslim Wakf
case (AIR 1979 SC 289), the proceedings under Section 4 of the Act are
not administrative proceedings and they are quasi judicial proceedings
and there is no record to show that a notice was issued to either Mr.
Rangaiah or his son Mr. Lakshmaiah at any point of time and no
information is forthcoming as to what type of enquiry was conducted by
the Survey Commissioner, which is required to be conducted under
Section 4 of the Act. Admittedly, the Survey Commissioner was vested
with the powers of a civil Court while conducting the enquiry under
Section 4 of the Act and he has the powers to summon even the persons
who are sought to be interested in the litigation. That is the reason why
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
72
more importance was given to the report of the Survey Commissioner
rather than the publication under Section 5 of the Act as it is a
consequential action pursuant to the report of the Survey Commissioner
and its examination by the Wakf Board. It is not in dispute that the
notification was issued in 1989, but the pre-requisite for issuing the
notification is the enquiry, which is contemplated under Section 4(3) of
the Act. The letter of the Deputy Tahsildar dated 24-7-1967 reads thus:
“With reference to the subject, it is to state that it has been proved
beyond doubt that the property mentioned in the schedule at the
margin in a wakf property pertaining to Abbas Ali Khan mosque,
Meerpet, Jillalaguda. One Laxhmiah R/o Meerpet has illegally
occupied over the said wakf property and enjoying the same. The
said property is estimated to be more than Rs.6,000/- per acre as
per the local rates. The said land may be taken under the custody
of the Government and one year assignment may be arranged and
legal action must be taken against the illegal occupant, which
shall be beneficial.”
Except the above letter, there is no other material forthcoming as
to what type of enquiry was conducted. Learned Government Pleader
would, however, try to stress his argument to the extent that the survey
report was prepared by the Survey Commissioner and in column
11(A)(viii) it was mentioned that during the enquiry it came to be known
that at the time of Mr. Mir Abbas Ali Khan, the land was given on lease
to Mr.Laxhmiah and since then he is in occupation and the lease amount
was not being paid to anyone. In the said column, it was also mentioned
that in the Munthakab it was mentioned for the purpose of Ood-e-Gul
only and there is no other document. The Survey Commissioner has
recorded his findings as follows:
W.P.Nos.16121, 16127,
16129 & 16130 of 202073
“As per the order dt.23-6-66 in file No.841/CWV/67 S.Nos.38-
131-153 M, 28 Acs. And 32 Gts. for the Mosque of Abbas Ali
Khan entered in this form is wakf.”
31. If this is construed as the report of the Survey Commissioner,
then the purpose of incorporation of Section 4 of the Act is frustrated. It
is only a form prescribed for registering a Wakf. But what is required to
be done by the Survey Commissioner is not to enter the Wakf as such and
he is bound to enquire whether the property is a Wakf property or not. He
is also empowered to conduct the enquiry as was observed by the
Supreme Court in the decisions referred to above. Mere filling of columns
would not amount to report of the Survey Commissioner so as to bind the
petitioners. Moreover, it is not in dispute that no notice was ever given to
the occupants, who were recorded as such in the revenue register.
Admittedly, the report was of 1967 by which time the petitioners were not
the purchasers. They came into picture at a later point of time. But, even
then the enquiry ought to project as to the notice having been given to the
persons. Even according to the reports submitted by the Deputy
Tahsildar and also the remarks made by the Survey Commissioner one
Lakshmaiah was in actual cultivation, but according to the Deputy
Commissioner Laxmaiah was in illegal occupation. Be that as it may, a
notice was necessary to be given to the person who is in occupation. But,
there is no such record forthcoming as to what type of notice was issued
to the parties and what type of enquiry was conducted. The report of the
Deputy Tahsildar cannot be construed as an enquiry report or the pro
forma for the survey of Wakf properties can be treated as a report of the
Survey Commissioner. The report as such has to conform to the
requirements of Section 4 of the Act as has been held by the Supreme
Court in the catena of decisions referred to above. It is also noticed from
the counter that the subject-matter of the property was endowed by the
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
74
owner of the land one Abbas Ali Khan into the Wakf Board in the year
1968 and the same was included in the list of wakf properties and the
same was published in the Gazette dated 9-2-1989 along with other
properties endowed by the same person. If this is to be accepted, it has to
be held that the Wakf was registered for the first time in 1968 and there
could not have been any report of the Wakf Commissioner in 1967.
Further the requirements under Section 25 of the Wakf Act 1954 have to
be complied with. There is not even an iota of proof of dedication by
Abbas Ali Khan nor is there any Wakf deed. It is very much doubtful
whether Abbas Ali Khan was alive in 1968 as can be seen from the
Judgment of II Additional City Civil Court in O.S. No. 368/69, dated 31-
3-1982 filed by one Abdul Qavi against Laxmaiah and others. When such
statutory requirements are not followed, the further question that falls for
consideration is whether still the petitioners are required to approach the
appropriate Tribunal or they can agitate under Article 226 of the
Constitution of India.
32. It is true that under Section 83 of the Act any dispute
arising out of Wakf properties can be agitated only before the Tribunal
constituted under the Act. But, in the instant cases, the very principal
requirement of notice and conducting enquiry as envisaged under the Act
are lacking. Therefore, the question of driving the petitioners to the
Tribunal would not arise. Admittedly, the petitioners have made out their
occupation rights from Mr. Rangaiah’s possession and thereafter Mr.
Lakshmaiah and they have purchased the land under registered sale
deeds and that too after obtaining appropriate permission from the
Competent Authority and it is also one of the contentions of the
petitioners that they have acquired title by adverse possession. But, I am
not inclined to adjudicate the same inasmuch as I am only concerned
with the validity of the notification published in the Gazette on 9-2-1989.
The decision referred to by the learned counsel for Wakf Board that the
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
75
petitioners have to approach the Tribunal or the Civil Court, as the case
may be, even after the expiry of one year period after the publication of
Gazette notification is not applicable to the present cases, as that
situation would not arise inasmuch as when the notice itself is lacking
and no purpose will be served by approaching the Tribunal, or Civil
Court. It is also to be noted that the report of the Survey Commissioner
sent by the Government to the Wakf Board has no automatic acceptance.
It is required to examine such report before publishing the list. This
statutory obligation is also totally lacking in this case. When the violation
of statutory provisions is made out, it is always open to the parties to
approach this Court under Article 226 of the Constitution of India.
Admittedly, as can be seen from various documents filed by both the
parties in these matters, nothing has been established-to sustain the
contention that the enquiry was conducted as required under Section 4(3)
of the Act. In such a situation, it cannot be said that the impugned
Notification is binding on the petitioners and accordingly, the petitioners
are entitled to challenge the same as it is illegal and not enforceable as
far as the petitioners are concerned. Accordingly, I have to reject the
contention raised on behalf of the Wakf Board and also the Government
in this regard.”
29. This decision has been upheld by the Divison Bench of this Court,
i.e., A.P. High Court (as it then was) in W.A. No.745 of 2002 and batch
dated 21.03.2021 and the said decision has also been upheld by the
Hon’ble Supreme Court in SLP in CC 12010-12015 of 2012 dated
27.02.2012. The copies of the said orders are also filed along with the
writ papers.
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
76
30. The Hon’ble Supreme Court in its latest decisions in Salem
Muslim Burial Ground Protection Committee Vs. State of Tamil
Nadu and others (7 supra) has considered Section 4 and Section 5 of
the Waqf Act, 1954 and has held under:-
“30. Another limb of the argument is that the suit land has been
declared to be a wakf property vide notification dated 29.04.1959. In this
regard, it has to be noted that such a declaration has to be in consonance
with the provisions of the Wakf Act, 1954 or the Waqf Act, 1955. Both the
aforesaid Acts lay down the procedure for issuing notification declaring
any property as a wakf.
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
W.P.Nos.16121, 16127,
16129 & 16130 of 202077
surveys, settlement of disputes arising thereto and the submission of the
report to the State Government and to the Board. Therefore, conducting
of the surveys hand, there is no material or evidence on record that
before issuing notification before declaring a property a wakf property is
a sine qua non. In the case at 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 Ammals, 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, 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
W.P.Nos.16121, 16127,
16129 & 16130 of 202078
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 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, 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.”
31. On the other hand, the respondents contend that notice was served
through beat of tom-tom. However, as rightly pointed out by the learned
counsel for the petitioners, service by beat of tom-tom is not a
recognized mode of service under any of the relevant statutes. Even
otherwise, the respondents have not placed any material on record to
substantiate that such a mode of service was in fact adopted. Learned
counsel for the respondents has placed reliance upon the judgment of the
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
79
Hon’ble Apex Court in Rai Vimal Krishna Vs. State of Bihar (15
supra) to contend that where no specific mode of service is prescribed
under the Waqf Act, the plea of lack of knowledge of notice cannot be
readily accepted and that strict sanctity need not be attached to the mode
of service. In support of the said contention, reliance is placed on the
following paragraphs.
“26. The third submission of the appellants relates to the mode
of publication of the assessment lists. That the mode of publication is a
procedural provision is self-evident. But is it a mandatory provision? The
High Court’s finding as to the nature of the provision for publication
under sub-section (1) of Section 149 is somewhat contradictory. While
holding that the manner of publication was mandatory and had to be
complied with in terms thereof, in a subsequent portion of the judgment,
it was held that it was a mere irregularity which could be waived. As we
read sub-section (1) of Section 149, the Chief Executive Officer is bound
to give public notice of the assessment list. The word “shall” makes that
clear. However, the word “shall” does not qualify the next phrase which
is separated from the words “public notice” by a comma. The phrase
separated is “by beat of drum and by placards posted in conspicuous
places throughout Patna…”. Generally speaking, the object of giving a
notice is to draw the attention of the persons sought to be affected to the
matter notified. The purpose of specifying a particular mode of giving
notice is to raise a legal presumption against such person, of knowledge
of the subject of the notice. In other words, once the mode specified for
giving notice is complied with, the onus is on the persons notified to
prove that they were not aware of the subject-matter of the notice. There
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16129 & 16130 of 202080
is otherwise no special sanctity given to the mode of service of notice.
The appellants have contended that even though owners were served
with individual notices under Section 149(2), unless publication was
made in the manner provided in Section 149(1) the occupants who were
liable to pay water tax and latrine tax would be seriously affected and
would not have an opportunity of challenging the imposition of the tax on
them. Incidentally, in the objections filed by the appellants their
contention is that the holdings owned by them were not liable to payment
of latrine tax or water tax because neither of the services were available.
However, the matter has to be decided as a principle and not with
reference to the appellants’ case.
27. Nobody disputes that publication and the giving of notice to
persons 9 likely to be affected by the assessment list is a must. The
appellants have admitted publication of the assessment lists in three
newspapers. It is not their case that such publication did not serve the
purpose of notifying those who might be affected by the assessment lists,
of their existence. Indeed it appears to us that the requirement to notify
people by beat of drum is an anachronism which appears to be
inappropriate in the present day and age in a large city like Patna. The
High Court’s apprehension that “holding this provision as directory is
likely to cause confusion and mischief in future and it is not for this
Court to substitute the wisdom of the legislature with its own by holding
that notice by newspaper will be sufficient in place of notice of the spot
by beat of drum and placards” is unfounded both in law and in fact. It is
an elementary principle of interpretation that words in statutory
provisions take their colour from their context and object, keeping pace
with the time when the word is being construed. When or where no other
means of effective publication is available, no doubt, announcing the
assessment list by beat of drum and by b displaying placards would have
to be complied with. Where equally efficacious, if not better, modes of
W.P.Nos.16121, 16127,
16129 & 16130 of 202081
publication are available, it would be ridiculous to insist on an obsolete
form of publication as if it were a ritual. Had the High Court found that
publication by newspapers was not effective enough to notify the public,
the assessment list could not be given effect to unless publication was
properly made. There is no such finding. On the other hand, publication
through newspapers is now an accepted form of giving general notice.
Therefore, we have no hesitation in holding that the portion of Section
149(1) which deals with the manner of publication, as opposed to the
requirement for publication per se, is directory. Since there has been
sufficient compliance in effecting the intention of the legislature to give
notice to the public at large in the city of Patna, we cannot hold that the
d assessment lists prepared on the basis of the 1993 Rules are required
to be set aside.”
32. This Court finds that the principle laid down in this decision is
that it is sufficient if one of the modes of service of notice is adopted and
it is not necessary that the alternative mode also is to be adopted. In the
cited case, the notices were published in the newspapers and the other
mode of notice by beat of drum was not followed and it was in these
circumstances that the Hon’ble Supreme Court has held that once one of
the modes specified for giving notice is complied with, the onus is on
the persons notified to prove that they were not aware of the subject
matter of the notice. In the case before this Court, there is no record of
service of notice by any mode, leave alone by beat of drum/tom tom.
W.P.Nos.16121, 16127,
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82
Therefore, the presumption that the petitioners or their predecessors
were aware of the survey cannot be drawn.
33. This Court has then observed and held that before conducting the
survey under Section 4(3) of the Waqf Act, a notice has to be given to
all the affected parties. It is also observed that the respondents claimed
to have issued notice by beat of drum/tom tom and therefore, admittedly
no notice in writing was given. This Court has already observed that the
mode of service of notice through tom tom is not a prescribed or
recognized mode of service of notice and there is also nothing on record
to show that the service of notice was done through beat of drum/tom
tom.
34. Therefore, the contention of the respondents that the notice was
issued to all the concerned and that the petitioners chose not to contest
the case or raised any objections cannot be accepted. In such facts and
circumstances, the decision of this Court in the case of Gowra Reddy
Vs. Government of Andhra Pradesh and others (2 supra) which has
been considered by the Hon’ble Supreme Court as observed above,
would be applicable and the enquiry under Section 4(3) of the Waqf Act
becomes void ab initio and therefore, the Gazette Notification No.7-A,
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
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dated 16.02.1989 issued by the Telangana Waqf Board on the basis of an
enquiry under Section 4(3) in the year 1966 is not sustainable.
35. Another reason for holding so is the delay of 23 years in issuing
the notification after the alleged survey in the year 1966-67. Even if it
was to be accepted that there was service of notice through beat of drum
in the year 1966-67, the fact that the Waqf Board kept quiet for 23 years
and has issued notification in the year 1989, goes to prove that the
survey report was not acted upon. There was a possibility of lot of
changes in the subject land during this period and since the executive
power was not exercised by the State Waqf Board within a reasonable
period, the survey report of 1966 cannot be relied upon for issuance of
notification in the year 1989. A Division Bench of this Court in the
case of Munawar Sultana and others Vs. Gosula Ramulu and others
(4 supra) has referred to the judgment of the Hon’ble Apex Court in the
case of State of A.P. Vs. A.P. Wakf Board (23 supra) and observed
that the Hon’ble Supreme Court has disapproved the action of issuing an
errata notification after a lapse of 17 years from the date of first
notification.
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
84
36. If a person is in adverse possession for more than 12 years, his
possession is protected and he cannot be evicted therefrom without
following due process of law. We are talking about 23 years after the
survey and the survey report also mentions that the kouldars are in
possession of the property. The factum of the Waqf Board not taking any
steps to evict the kouldars/encroachers also demonstrates that the Waqf
Board was also not serious in taking possession of the property even
after it was established during the course of the alleged survey, that the
petitioners/kouldars are in possession of the property.
37. Therefore, the Waqf Board has also acquiesced to the possession
of the petitioners and they could not have issued the impugned
notification without conducting a fresh survey. Further, the Gazette
Notification was issued by the Waqf Board without verification of the
enquiry report, i.e., as to whether the enquiry was conducted by
following the prescribed procedure. As rightly pointed out by learned
counsel for the petitioners, it is the proforma of the survey report which
has been filed and not the report itself. Since the prescribed procedure
has not been followed by the respondents, the impugned Gazette
Notification is liable to be set aside.
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
85
38. Even on merits, this Court finds that there are several
discrepancies in the proforma of the survey report and the Muntgakhab
relied upon by the respondents. The total extent mentioned in the
Muntakhab is Acs.886.02 gts., whereas in the counter affidavit, the total
extent of Waqf land is mentioned as Acs.1299.09 gts., whereas the
impugned Notification mentions it as Acs.1293.27 gts. There are no
survey numbers mentioned in the Muntakhab, whereas the survey
numbers are mentioned only in the impugned Notification.
39. The learned counsel for the petitioners has pointed out that at the
time of the survey, there were three revenue villages of Aloor, whereas
the notification Muntakhab refers to only Aloor Village and the Survey
numbers which have been mentioned in the proforma do not find place
in the impugned Notification. Therefore, it appears that when comparing
the Muntakhab proforma and the impugned Notification, there are many
contradictions.
40. Further, the original Muntakhab has not been produced by the
parties and it is only the photocopy which is produced. Further, as
pointed out by the learned counsel for the petitioners, the records show
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
86
that the major extent of land in the villages Aloor-I and Aloor-II has
been recorded as sarkari and not as Inam lands and therefore, this fact
falsifies the claim that the entire land covered under notification was
Inam granted through Muntakhab.
41. Though these specific allegations have been raised by the
petitioners in their writ affidavits and also the written arguments, the
respondents have not rebutted the same with any evidence to the
contrary nor have they produced any documentary evidence. There is
reference to the correspondence/letters between the State Waqf Board
and the Deputy Collector, Ranga Reddy District, wherein there was
request to incorporate Inams of the Waqf institution in the revenue
records.
42. According to the learned Senior Counsel for the respondent-Waqf
Board, the claim of the Waqf Board with regard to Waqf subject land
being Waqf property is not a concocted one and that it is true and
correct. However, this Court finds that the said correspondence
furnishes only incomplete information and therefore, it cannot be relied
upon to come to any conclusion about the veracity of the claim of the
Waqf Board.
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
87
43. Even otherwise, this correspondence would be only on the basis of
Muntakhab and the impugned Notification of 1989 and since the
Notification has been held to be issued without proper survey under
Section 4(3) of the Waqf Act, the subsequent correspondence even if it
is with regard to the subject property would not establish the right of
Waqf Board over the property.
44. As held by the Hon’ble Supreme Court in the case of Salem
Muslim Burial Ground Protection Committee Vs. State of Tamil
Nadu (7 supra), mere issuance of notification under Section 5 of the Act
would not constitute a valid ground in respect of the subject land and
this view has also been expressed by the Division Bench of this Court.
45. Further, learned Standing Counsel for the Waqf Board has placed
reliance upon the decision of Hon’ble Supreme Court in the case of Zile
Singh Vs. State of Haryana and others 24 for the proposition that where
the legislation is introduced to overcome a judicial decision, the power
cannot be used to subvert the decision without removing the statutory
basis of the decision and therefore, the amendment made to law cannot
24
(2004) 8 SCC 1
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
88
be applicable retrospectively unless it is stated so. However, this
decision is not applicable to the facts of the case before this Court.
46. He also placed reliance upon the decision of the Hon’ble Supreme
Court in the case of Faqruddin (dead) through L.Rs. Vs. Tajuddin
(dead) through L.Rs. 25 in support of his contention that revenue
authorities cannot decide a question of title and that inheritance or
succession to a property is governed by statutory law and that the offices
of Sajjadanashin or Mutawalli is not an ordinary office and that a person
must possess the requisite qualifications to hold the said office and
further, that there is no distinction between the office and the property of
endowment.
47. He also referred to the decision of a Division Bench of this Court
in the case of R. Doraswamy Reddy Vs. The Board of Wakf A.P.
Hyderabad rep. by its Secretary 26 for the meaning of the word
‘beneficiary’ under Section 3(a) of the Wakf Act, 1954 to submit that
‘benefit’ does not include any benefit which a mutawalli is entitled to
claim solely by reason of his being such mutawalli.
25
(2008) 8 SCC 12
26
S.A.No.445 of 1977 dt.16.08.1978 of High Court of Judicature, Andhra Pradesh at Hyderabad
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
89
48. In support of his contention that entries in revenue records or
jamabandi have only “fiscal purpose”, i.e., payment of land revenue, and
no ownership is conferred on the basis of such entries, he placed reliance
upon the decision of the Hon’ble Supreme Court of India in the case of
Suraj Bhan and others Vs. Financial Commissioner and others 27.
49. He also referred to and placed reliance upon the decision of a
learned Single Judge of this Court in the case of K.G.Krishna Murthy
(died) by L.Rs. Vs. Joint Collector, Ranga Reddy District and
others28 to submit that after 01.11.1973, ORC can be given only in the
name of an institution when it is a service Inam and not in the name of
an individual.
50. In support of his contention that Munthaquab is the document
which would decide the nature of the property, he placed reliance upon
the decision of a learned Single Judge of this Court in the case of Syed
Ameenuddin Hussain Vs. Joint Collector, Medak District at Sanga
Reddy and others29.
27
(2007) 6 SCC 186
28
2008 (1) ALD 836
29
2003 (4) ALD 878
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
90
51. This Court has already discussed the principles referred to in the
above judgments by holding that under Inams Abolition Act, it is only
the religious institution whose name can be recorded and who can be
issued the ownership right certificate (ORC) and not the individual.
52. Learned Senior Counsel appearing for Waqf Board had relied
upon the judgment of the Hon’ble Supreme Court in the case of L.
Chandra Kumar Vs. Union of India and others (10 supra) to submit
that after the constitution of the Waqf Tribunal, the High Court cannot
decide the issues relegated to the Tribunal and for the very same
purpose, he placed reliance on the decision of this Court in the case of
Dr. T.S.A. Guptha Vs. Joint Collector-II, Hyderabad and others 30.
Further, he placed reliance on the decision of the Hon’ble Supreme
Court in the case of Rashid Wali Beg Vs. Farid Pindari and others
(11 supra) to submit that Section 83 of the Wakf Act, 1995 covers the
entire gamut of possible decision to any waqf or waqf property and
therefore, the petitioners should be directed to approach the Waqf
Tribunal for adjudication of their disputes. The other decisions relied
30
2007 SCC OnLine AP 753 : (2008) 2 ALD 184 : (2008) 4 ALT 189
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
91
upon by the learned Senior Counsel appearing for the Waqf Board are as
follows:
(ii) The Public Information Officer Vs. A.P. Information
Commissioner and another32
(iii) Yousuf Begum Vs. Wakf Board, Hyderabad and
another (18 supra)
(iv) V. Aruna Vs. State of Telangana rep. by its Prl.
Secretary, Revenue Department and others (16 supra)
(v) S. Manikya Reddy Vs. The A.P. State Wakf Board, rep.
by its Chief Executive Officer, Hyderabad and another33
(vi) Rai Vimal Krishna and others vs. State of Bihar and
others (15 supra).
This Court finds that there is no quarrel with regard to the principles laid
down by the Hon’ble Supreme Court in the cases cited supra and the
31
2000 (3) ALT 766
32
AIR 2009 Andhra Pradesh 73
33
2014 SCC OnLine AP 336 : (2014) 5 ALD 35: (2014) 6 ALT 525
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
92
principles laid down therein are applicable to the facts of the case before
this Court and some principles have already been considered by this
Court in the above paragraphs.
53. In view of the same, the impugned Gazette Notification No.7-A
dated 16.02.1989 is held to be bad in law and is accordingly set aside;
and the impugned Memo dated 04.12.2019 is also set aside with a
direction to respondent No.4, i.e., the Revenue Divisional Officer,
Chevella Division, Ranga Reddy District, to reconsider the applications
of the writ petitioners for Occupancy Rights Certificate (ORC) afresh
without reference to the Gazette Notification No.7-A dated 16.02.1989.
54. The Writ Petitions are accordingly allowed. No order as to costs.
This Court, while passing order dt.15.12.2025 in the implead
applications in all the Writ Petitions, has allowed them by observing that
any decision on merits of rights of each party will be subject to
appropriate proceedings at the time of hearing of the Writ Petitions
themselves. Having gone through the contentions of the petitioners as
well as the respondents, it is noticed that the petitioners in the implead
applications are claiming to be the legal heirs of inamdars and this Court
has observed that the impugned Gazette Notification is not valid as the
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
93
prescribed procedure for conduct of enquiry under Section 4(3) of the
Waqf Act has not been followed. The nature of the property and the
rights or otherwise of the inamdars are not the issues before this Court
and therefore, the rights of the legal heirs of such inamdars cannot be
considered and adjudicated in these Writ Petitions. The impleaded
parties are therefore advised to approach appropriate authority for
redressal of their grievances, if any.
55. Pending miscellaneous petitions, if any, in these Writ Petitions
shall stand closed.
___________________________
JUSTICE T. MADHAVI DEVI
Date: 17.04.2026
SPD/Adt/Svv
