Andhra Pradesh High Court - Amravati
Madanuri Sri Rama Chandra Murthy vs The State Of Andhra Pradesh on 29 September, 2022
Author: D.Ramesh
Bench: D.Ramesh
THE HON'BLE SRI JUSTICE D.RAMESH
WRIT PETITION No.11646 of 2022
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking to declare the action of the 3rd respondent keeping the agricultural land in Sy.No.113 to an extent of Ac.18.88cents situated at Pernamitta Village, Santhanuthalapadu Mandal, Prakasam District in the prohibited properties list on the letter addressed by the 6th respondent Chief Executive Officer vide F.No.S-74/PKM/2017 dated 07.02.2022 is being illegal, arbitrary and consequently direct to delete the above property from the prohibited properties list.
2. Heard Sri O.Manohar Reddy, learned senior counsel appearing on behalf of the petitioner and learned standing counsel for respondents 5 and 6.
3. The petitioner and his associates have purchased agricultural land to an extent of Ac.4.72cents in Sy.No.113 situated at Pernamitta Village, Santhanuthalapadu Mandal, Prakasam District out of the total extent of land admeasuring Ac.18.88cents vide registered sale deed document no.102/2013 dated 22.01.2013. Originally the said document was presented by the petitioner along with 4 others on 02.5.2011 for execution of registration. The same was kept pending by the 4th respondent vide his proceedings no.11/2011 and refused to register the same vide intimation of refusal dated 13.12.2011 on the 2 ground that there was a communication from the 6th respondent that it was a wakf property belongs to Ashoor Khana, Pernamitta Village, Santhanuthalapadu Mandal. Aggrieved by the same, the petitioner has filed W.P.No.34155 of 2012 on the file of this Court seeking for a direction to declare the action of 3rd respondent therein in not registering the above said document as being illegal and arbitrary. Said writ petition was disposed of on 09.11.2012 by observing that no reasons are recorded in the impugned intimation of refusal dated 13.12.2011 by the 3rd respondent therein and accordingly the same is quashed and remanded the matter to the 3rd respondent to consider the document afresh in the light of the supporting document filed by the petitioner and take an appropriate decision as per rules. In furtherance to the above directions, the 3rd respondent after issuing notice to 5th respondent inter alia directing to file objections if any for the registration of the subject document has executed a registered sale deed vide doc.No.102/2013 dated 22.01.2013 in his favour along with 4 others.
4. While so, the Muthawalli of one Ashoor Khana, known as Raja Rajeswari Peerla Chavidi situated at Ongole has filed a suit vide O.S.No.59/2013 on the file of the Andhra Pradesh State Wakf Tribunal (herein after referred to as Tribunal) seeking for cancellation of the sale deed executed in their favour dated 22.01.2013 and also 3 filed I.A.No.559 of 2013 seeking for injunction restraining the petitioner and others from alleged alienating the said property and initially obtained exparte injunction order. Subsequently after considering the gazette notification pertaining to Pernamitta village Ashoor Khana and also other relevant documents filed by the petitioner along with counter affidavit was pleased to dismiss the said I.A. in a categorical finding that the claim of the Muthawalli of the 5th respondent with regard to subject agricultural land in Sy.No.113 to an extent of Ac.18.88cents is false and it is not wakf property. As against the said orders, the said Muthawalli of the 5th respondent filed a Civil Revision Petition vide C.R.P.No.364 of 2014 before this Court and the same was dismissed on 28.10.2015.
5. While so, there was gross abuse on the process of law and on the process of Court, the petitioner and others who are the defendants in the said suit have filed I.A.No.458 of 2015 under Order VIII Rule 11 CPC inter alia seeking for rejection of the plaint as there is no cause of action for filing the above suit. After thorough examination, as there was no cause of action to file the suit, learned Tribunal allowed the I.A. vide order dated 21.10.2013 and rejected the plaint filed by the Muthawalli therein. While allowing the said application, the learned Presiding Officer of the Tribunal has given a categorical finding that there is no cause of action for filing the suit for cancellation of the sle 4 deed dated 22.01.2013 executed in favour of petitioner and others. Meanwhile, the 5th respondent has also filed W.A.No.1655 of 2013 as against the orders passed by this Court in W.P.No.34155 of 2012 and the same was dismissed by the Division Bench on 27.9.2013. As against the orders of the Tribunal in I.A.458/2015 in O.S.No.59/2013 dated 21.10.2013 the plaintiff/muthawalli of 5th respondent has filed civil revision petition no.2472 of 2016 on the file of this Court and the same was allowed vide orders dated 07.9.2016 by setting aside the orders passed by the Tribunal directing the Tribunal to restore the suit and proceed with the trial in accordance with law. Assailing the said orders the petitioner had preferred Special Leave Petition (Civil) No.35352 of 2016 and the said Special Leave Petition was allowed vide order dated 19.4.2017 by setting aside the orders passed by this Court in civil revision petition no.2472 of 2016. The same was also reported in (2017) 13 SCC 174. In all the forums right from Tribunal to Apex Court categorically held that the subject property is not a wakf property and there are no grounds to the 5th respondent and its Muthawalli to claim the same as Ashoor Khana property. Apart from the same, the 5th respondent Board also filed a review petition before the Hon'ble Apex Court vide Review Petition (Civil) Dairy No.6545 of 2018 in the above Civil Appeal No.5368 of 2017. The said application was dismissed on 24.4.2018 with the following directions. 5
Application for permission to file review petition is granted. Application for oral hearing is rejected.
Delay condoned.
Having carefully gone through the Review Petition, the order under challenge and the papers annexed therewith, we are satisfied that there is no error apparent on the face of the record, warranting reconsideration of the order impugned.
The review petition is, accordingly, dismissed.
6. Even after dismissal of the review petition, violating the orders of the Hon'ble Apex Court, the 6th respondent herein has issued errata notification on 16.11.2017 vide F.No.S-74/PKM/AP/2017 to the A.P.Gazette No.26, Part-II dated 28.6.1962 at S.No.966 under column no.9 including the subject property in Sy.No.113 to an extent of Ac.18.88 cents situated at Pernamitta T.D.No.488 as the wakf properties at Kolachanakota and the same was published in the A.P.Gazette W.No.46 dated 22.11.2017. Aggrieved by the same, the petitioner filed a contempt petition vide Contempt Pet.(Civili) No.1199 of 2018 in C.A.No.5368 of 2017 and the Hon'ble Apex Court upon hearing the contentions has passed the following order.
"We prima facie find that the notification dated 16.11.2017 is illegal in as much as it goes contrary to the judgment passed by this Court dated 19.4.2017. However, learned counsel for the respondents submit that they will take instructions to get the Errata notification dated 16.11.2017 withdrawn.
The matter stands adjourned for two weeks"
Subsequently as requested by the counsel appearing on behalf of wakf board, the Court has passed the following order on 02.3.2020. 6
Learned counsel for the respondent-wakf board submits that the wakf board has written letter on 20.12.2019 requesting the State Government to withdraw the Errata notification dated 16.11.2017 immediately. However, no record is placed before this Court by the wakf board that the notification is withdrawn by the State Government.
Since the illegality is initiated by the wakf board by requesting the State Government to issue Errata notification, it is for the wakf board to get its defect rectified as per law. For that purpose, the matter is finally adjourned by three weeks at the request of the learned counsel for the wakf board. In case the notification is not withdrawn by the state in the meanwhile, the chief executive officer for the state of Andhra Pradesh state wakf board, Vijayawada shall remain personally present and court will take a serious view of the matter. List on 15.4.2020. Finally basing on the submissions made by the counsel for the wakf board has closed the contempt case with the following observatiosn on 12.3.2021:
In consequent to the orders of the Hon'ble Supreme Court dated: 08.03.2021 in C.C.No.1199/2018 in CA.No.5368/2017 and thereupon as per the instructions of the Government vide memo.MNW01-MMS0WAQF(RWP)/9/2019-IDM, dated 09-03-2021, the Errata Notification dated 16.11.2017 issued by the Chief Executive Officer A.P.State Waqf Board Vijayawada, published in the A.P.Gazette W.No.46, dated 22.11.2017 is hereby withdrawn.
While things stood thus, surprisingly the registering authorities again kept the property under the prohibitory list under the guise of the letter addressed by the 6th respondent Chief Executive Officer vide F.No.S-74/PKM/2017 dated 07.02.2022 which reads as follows:
I invite your attention to the references cited and you are hereby informed that this office was filed O.S.No.22 of 2018 before the Hon'ble A.P.Waqf Tribunal. As the matter is pending in the A.P.Waqf Tribunal until and unless the matter is disposed or dismissed, it is requested to take any decision in respect of registrations of subject waqf.7
7. Basing on the above said letter, the registering authorities have placed the subject property under prohibitory list. Assailing the same the writ petition is filed.
8. In reply to the averments, respondent nos.5 and 6 have filed their counter. Though they have admitted about the judicial proceedings which was ended up to the level of Apex court, but they have stated that the land in an extent of Ac.18.88cents situated in Sy.No.113 of Pernamitta village, Santhanuthalapadu Mandal, Prakasam District is a waqf property. The survey commissioner of waqf was appointed by the Government to undertake survey to identify, demarcate the waqf properties. Said survey commissioner had submitted its report to the Government. As per the survey commissioner's report dated 04.02.1956 under T.D.No.488 its corresponding Sy.No.113 land admeasuring Ac.18.88cents of Pernamitta Village is recorded as waqf land by following the procedure under Section 4 of waqf Act. But the name of the pernamitta village is not mentioned against the survey number due to inadvertence in the Gazette. Further stated that the Hon'ble Apex Court in Mandanuri Sri Ramachandra Murthy v. Syed Jalal has observed that if any waqf property is not notified or it is not placed in the gazette the procedure under Section 27 of the waqf act has to be followed. 8
Section 27 of the old waqf Act which correspondence to Section 40 of waqf Act, 1955.
9. Section 40 contemplates that the board may itself collect information regarding any property which it has reason to believe to be waqf property and if any question arises whether a particular property is waqf property or not after making such enquiry as it may deem fit, decide the question. There is not only reason to believe that the said land is a waqf land, but also it is supported by report of the survey commissioner of waqf. It is also statutory duty to follow under Section 40 of the Act. It is further stated that the waqf board is not party defendant between the suit or lis between Mandanuri Sri Ramachandra Murthy v. Syed Jalal Said suit between them is nothing short of a collusive proceedings or a collusive suit for the said reason by the waqf board is not arrayed as party defendant. At any stage of suit or appeal or special leave petition any decision where A.P.State Waqf Board is not party defendant the decree is not binding on the A.P.State waqf board. If the waqf board is party to the suit, it would have brought to the notice to the Court regarding the nature of the property that the subject or a suit schedule property is a waqf land.
10. Further it is averred that the subject land is reflected as inam land/Manager for the time being of peerlu. Therefore, even as per 9 RSR record the land belongs to waqf institution. The RSR (Resurvey Resettlement Register) dates back to 1920, where the Gillmen had conducted survey of Madras Presidency and re-survey settlement regbister was prepared, which is a mother document to ascertain in the nature of the land. Therefore, it is a prohibited property falls within the category of Section 22(A) of Registration Act, 1908.
11. Further submitted that the petitioner has to substantiate that he has acquired right title and interest in the entire extent of Ac.18.88cents in Sy.No.113 by filing a declaration suit. The petitioner has shown different extents of land in the writ petitions filed at different times. The waqf board had filed a suit in O.S.No.22/2018 on the file of the Tribunal against seven defendants wherein the petitioner is also one of the defendant, seeking direction to issue permanent injunction against the defendants 1 to 5 from alienating plaint schedule property and to direct the defendant no.7 not to receive or register any document in respect of the plaint schedule property etc which is pending. As per settled law, a title dispute in respect of immovable property is to be decided in competent civil court and the petitioner cannot agitate to seek relief by filing writ petition under Article 226 of the Constitution of India.
12. Further stated that there is no disobedience of any orders of the Hon'ble Apex Court at all and in pursuance of Apex Court's decision, a 10 gazette notification is issued withdrawing the errata notification by including Sy.No.113 measuring Ac.18.88cents as waqf property, so the petitioner cannot mis-represent the facts and directions of Hon'ble Apex Court and prayed to dismiss the writ petition.
13. Basing on the above pleadings, learned senior counsel appearing on behalf of the petitioner has vehemently contended that the action of the 5th respondent is nothing but atrocious and contemptuous. As the averments made in the counter is nothing but perjury. In paragraph no.4 he has averred that the A.P.Waqf Board is not arrayed as a party defendant at any stage of the suit, or appeal or special leave petition and the decree is not binding on the A.P.Waqf Board. The fact remains that the A.P.Waqf Board has filed a review petition before the Hon'ble Apex Court vide no.6545 of 2018 and the said petition was rejected on merits. Initially the application for permission to file review petition is allowed and after going through the review petition and papers annexed with it, the Court has dismissed on merits. In such a case, the averments made in the counter by the 5th respondent is contrary to the record. Hence it should be construed as perjury.
14. Further learned senior counsel has submitted that after passing final orders by the Hon'ble Apex Court in Civil Appeal No.5368 of 2017 dated 19.4.2017, the respondents have intended errata on 22.11.2017 and the same was brought to the notice of the Hon'ble Apex Court and 11 Apex Court has taken serious note of the said errata and accordingly, the same was withdrawn by the respondents. Basing on the withdrawal, the contempt case has been closed vide orders dated 16.3.2021. After closing of the contempt case, 6th respondent ought not to have made such a correspondence to the 4th respondent vide impugned letter dated 07.02.2022. After withdrawal, the notification issued by the errata dated 22.11.2017 and after closing of the contempt case by the Apex Court, the present impugned action of the 5th respondent is only to circumvent the above said orders of the Hon'ble Apex Court.
15. Further learned senior counsel has submitted that as observed by this Court in catena of judgments that the 6th respondent is not the competent authority as per the provisions of the Registration Act, 1905 unless and until if it is notified as per the provisions of the Act, respondents 3 and 4 are not entitled to act upon the letter submitted by 6th respondent. Hence requested to set aside the same by directing the respondents to delete the subject properties from the prohibitory property list.
16. Taking the above submissions into consideration and also perusal of the orders passed by the Hon'ble Apex Court both in Civil Appeal No.5368 of 2017 as well as the orders passed in contempt petition (Civil) No.1199 of 2018 and also the ratio decided by this 12 Court in W.P.No.5238 of 2022 and batch, this Court is of the opinion that the 6th respondent cannot directly made correspondence to the registration authorities without notifying the properties under the provisions of the Registration Act 1905.
17. On perusal of the letter communicated by the 6th respondent which is nothing but contemptuous action when the errata notification was withdrawn before the Hon'ble Apex Court and after withdrawal of the said errata notification, 6th respondent ought not to have issued such proceedings till the declaration made in favour of the 5th respondent by any competent court. This Court is taking very serious view on the said act of the 6th respondent. Henceforth, the same is repeated, this Court would take serious action against the 6th respondent.
18. Accordingly, the impugned letter dated 07.02.2022 is set aside and respondent nos.3 and 4 are directed not to act upon the same by deleting the subject properties from the prohibitory properties list under Section 22-A of the Registration Act, 1905.
19. Accordingly, the writ petition is allowed. This Court directs the 6th respondent to pay Rs.25,000/- (Rupees twenty five thousand only) towards costs to the legal services authority, High Court of Andhra Pradesh, Amaravati, within a period of 30 days from the date of the order.
13
Miscellaneous petitions, if any, pending in this petition shall stand closed.
_____________________ JUSTICE D.RAMESH Date:
RD 14 THE HONOURABLE SRI JUSTICE D.RAMESH WRIT PETITION No.11646 of 2022 Dated RD