Telangana High Court
Dharavath Srinivas vs The State Of Telangana on 25 January, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 28137 OF 2023
ORDER:
Petitioner is absolute owner and possessor of plot No. 60 in Survey No. 93 admeasuring 200 square yards situated at Boduppal Village and Municipality, Medipally Mandal, Medchal- Malkajgiri District by virtue of the registered sale deed dated 14.02.2018. He offered to sell the said plot and the purchaser agreed to purchase the same for a valuable consideration. While so, petitioner is stated to have approached the 7th respondent to intimate the stamp duty and registration charges, who, in turn, after verifying the basic value, refused to furnish the information and placed the copy of letter of the 2nd respondent dated 09.02.2022 bearing F.No. 500/PROT/MDCL/2010, referring Gazette dated 09.02.1989 wherein subject property was referred to as 'waqf'. The case of petitioner is that if the land is waqf, it ought to have been included in the prohibited list under Section 22-A of the Registration Act. It is his grievance that the government published the Notification which includes subject property as waqf, without verifying their own record and without making any local inspection. The Waqf Board also without verification of revenue records and knowing the facts of the case and without conducting enquiry as required by the Act, wrongly included the 2 lands in the list. Petitioner therefore, seeks to set aside the letter dated 09.02.2022 and to direct the 7th respondent to receive, register and release the document presented by the petitioner.
2. Learned counsel for petitioner Sri Rapolu Bhaskar submits that in similar circumstances, some of the aggrieved persons filed Writ Petitions No. 12275 of 1993, 25392 of 1996 and 681 of 1997 and this Court held that the gazette notification dated 09.02.1989 was not valid and not binding insofar as petitioners therein are concerned. The said judgment was upheld even in Writ Appeal filed by the Waqf Board in Writ Appeal Nos. 745 and 868 of 2002. According to learned counsel, since the date of Gazette Notification dated 09.02.1989, either revenue, registration and waqf authorities have not initiated any proceedings in respect of the above said survey numbers and the Managing Committee of Dargah has not initiated any action since the date of notification for possession and eviction. There is no notification for the subject plot belonging to him under Section 22-A of the Act and Respondents 6 and 7 cannot refuse to register the subject land and the said land cannot be treated as belonging to Waqf Board on the basis of official Gazette of 1989 without taking into consideration various subsequent registered sale transactions as well as entries in the revenue records and issuance of pattadar passbooks.
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3. The Chief Executive Officer, Telangana State Waqf Board filed the counter-affidavit stating that petitioner has belatedly approached this Court for issuance of a writ calling for records pertaining to proceedings in Gazette Notification No. 6-A dated 09.02.1989. Petitioner sought for registration of waqf properties through individual transactions in contravention of law of the land in force being the Waqf Act, 1955 read with Registration Act, 1908 which explicitly prohibits any transaction as registration of subject property as waqf simply denotes inalienability. It is stated that petitioner is erroneous in contending that he is the absolute owner of Plot No. 60 falling in Survey No. 93 of Boduppal Village as the said property was shown at Sl.No. 2746 as waqf property in gazette notification dated 09.02.1989, attached to Dargah Hazarath Mir Mahmood Chup.
4. Learned Standing Counsel for Waqf Board Sri Farhan Azam Khan submits that this Court in V. Aruna v. State of Telangana 1, Court while upholding the validity of Gazette Notification dated 09.02.1989, held as under:
" Merely because registering authorities entertained deeds of conveyance on subject land till recently, but stopped due to certain complaints filed against such registration is no ground to test the validity of gazette publication dated 09.02.1989 after long lapse of time on the touchstone of notice 1 2020(4) ALD 569 4 and opportunity. As per communication from State Waqf Board to the Registering Authorities, the subject land is treated as waqf land. Once a land is notified as waqf land and information is furnished to the registering authority, the registering authority is restrained from entertaining deeds of conveyance. Thus, unless the subject land is de-notified as waqf land, they cannot be mandated to register the deeds of conveyance. Merely because some transactions were made earlier is no ground to perpetrate the illegality. The scope of Section 22-A was elaborately considered by the Full Bench of this Court in Vinjamuri Rajagopala Chary v. State of Andhra Pradesh and in terms thereof the decision of registering authorities refusing to register deeds of conveyance on subject lands cannot be faulted. Under Section 39 of the General Clauses Act, 1989, 'official gazette' or 'gazette' shall mean the 'Gazette of India or the Official Gazette of a State."
Learned Standing Counsel further relied on the judgment in State of Kerala v. K. Prasad (Civil Appeal No. 2913 of 2007), wherein it has been held as under:
" It is true that Article 14 of the Constitution embodies a guarantee against arbitrariness but is does not assume uniformity in erroneous actions or decisions. It is trite to say that guarantee of equality being a positive concept, cannot be enforced in a negative manner. To put it differently, if an illegality or irregularity has been committed in favour of an individual or even a group of individuals, others, though falling in the same category, cannot invoke the jurisdiction of the writ courts for enforcement of the same irregularity on the reasoning that the similar benefit has been denied to them. Any direction for enforcement shall tantamount to perpetuating an illegality, which cannot be permitted. A claim based on equality clause has to be just and legal."
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He further submits that an order made in favour of a person in violation of the procedure prescribed cannot form a legal premise for any other person to claim parity with the said illegal or irregular order. A judicial forum cannot be used to perpetuate the illegalities (See Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Ekta Shakti Foundation v. Govt. of NCT of Delhi, Chandigarh Administration v. Jagjit Singh). According to the learned Standing Counsel, this Court while adjudicating the lis is not bound by its own decisions but that of higher authorities. In Siri Nivasam Mutually Aided Housing, Building Society Ltd. V. State 2, the Hon'ble Apex Court observed that 'the registering authorities would be justified in refusing registration of documents in respect of the properties covered by the clauses (a) to (d) of sub- section (1) of Section 22-A provided the authorities contemplated under the guidelines, as aforementioned, have communicated the lists of properties prohibited under these clauses.' In Ajay Pal Singh v. State of Uttar Pradesh (Civil Appeal No. 5738-5739), the Hon'ble Supreme Court held that nobody can be permitted to take the benefit of the mistake either of the Court or any party, which mistake has occurred inadvertently and without noticing the 2 2018(3) ALT (SC) 42 (FB) 6 peculiar facts. As such, it was the duty of the advocate for the claimants to point out the correct facts.
5. Having heard the learned counsel on either side, perused the record.
6. Admittedly and as rightly pointed out by the learned Standing Counsel, this Court in V. Aruna's case, upheld the gazette publication dated 09.02.1989 and held that registration of notified waqf properties cannot be granted. In view of the same, unless and until the subject property is de-notified, it cannot be permitted to be taken up for registration. Though, learned counsel for petitioner submits that, in similar circumstances, this Court directed the respondents to receive, register and release the document presented by the petitioner, however, subject to condition that such registration shall be treated as provisional and subject to result of the Writ Petition, this Court, in view of the judgments relied on by the learned Standing Counsel, has no hesitation to hold that waqf properties are inalienable and when once the land is notified as waqf and information is furnished to the registering authority, the registering authority is restrained from entertaining deeds of conveyance. Further, as the scope of Section 22-A was elaborately considered by the Full Bench of this Court in Vinjamuri Rajagopala Chary v. State of Andhra 7 Pradesh, in terms thereof, the decision of registering authorities is held to be correct as petitioner sought for virtual annulment of two special enactments contrary to the settled principle of law. The Writ Petition is therefore, liable to be dismissed.
7. The Writ Petition is accordingly, dismissed. No costs.
8. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 25th January 2024 ksld