Andhra HC (Pre-Telangana)
Syed Rawoof And Others vs State Of Andhra Pradesh, Represented By ... on 18 July, 2013
Equivalent citations: AIR 2014 (NOC) 344 (A.P.)
Author: Sanjay Kumar
Bench: Sanjay Kumar
THE HON'BLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION NOs.12412 OF 2013 AND batch
dated:18-07-2013
Syed Rawoof and others.... Petitioners
State of Andhra Pradesh, represented by its Secretary, Revenue Department,
Secretariat, Hyderabad, and others...Respondents
Counsel for petitioners: Sri S.Arifullah
Sri M.R.Mohd Irfan
Counsel for respondents: G.P. for Revenue
Sri Shafath Ahmed Khan,
S.C. for Wakf Board.
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. (1988) (2) SCC 642
2. 2012 (4) ALD 144 (DB)
3. AIR 2002 ANDHRA PRADESH 313
4. AIR 1979 SC 289
THE HON'BLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION NOs.12412 AND 12875 OF 2013
C O M M O N O R D E R
Refusal by the registration authorities to entertain documents relating to the lands in Sy.No.963 of Palamaner Village and Mandal, Chittoor District, is called in question in these cases.
The petitioners in W.P.No.12412 of 2013 are concerned with an extent of land in sub-divided Sy.No.963/3 while the petitioners in W.P.No.12875 of 2013 relate their claim to certain plots in sub-divided Sy.No.963/5A of Palamaner Village and Mandal.
The Sub-Registrar, Palamaner, filed counter-affidavits in the two cases stating that the subject lands were notified as Wakf properties as per the list furnished by the Chief Executive Officer, A.P.State Wakf Board (hereinafter, 'the Board'), under his letter dated 12.10.2012, to the Collector and District Magistrate, Chittoor District. In turn, the Collector, Chittoor District, addressed letter dated 23.11.2012 to the District Registrar, Chittoor District, leading to the issuance of Memo No.G1/853/2012 dated 24.11.2012 to all the Sub- Registrars in the district to abide by the instructions of the District Collector, Chittoor District. These instructions were to the effect that the Sub-Registrars were not to register documents relating to Wakf properties without obtaining a 'No Objection Certificate' from the Board. A list of Wakf properties in Chittoor District was enclosed therewith and included Sy.No.963, admeasuring Ac.19-02 cents, of Palamaner Village and Mandal. The letter dated 12.10.2012 of the Board; the letter dated 23.11.2012 issued by the District Collector, Chittoor District; and the consequential Memo dated 24.11.2012 issued by the District Registrar, Chittoor, are challenged by the petitioners in W.P.No.12412 of 2012. Directions are sought in both the cases to the registration authorities to register the documents presented by the petitioners in respect of the subject lands.
The Board stated thus in its counters: Sy.No.963 of Palamaner Village and Mandal, Chittoor District, is a Wakf property attached to an Idgah. The particulars of the Idgah are mentioned in the Notification published in the Andhra Pradesh Gazette dated 28.06.1962 at S.No.2936. However, particulars of the survey number and the extent were not reflected in the said Notification though the Survey Commissioner's Report reflects that Sy.No.963 of the Village, admeasuring Ac.19-02 cents, was the property endowed to this Idgah. According to the Board, the revenue records also reflected that this was an inam land. The Board pointed out that the registered sale deed bearing Document No.1384 of 1929, relied upon by the petitioners in W.P.No.12412 of 2013, also described the subject lands as khairathi inam (charitable gift). The Board therefore stated that any number of registered transactions which took place in respect of these lands after 1929 would not dilute their status as Wakf property and justified its action in advising the registration authorities to desist from entertaining documents for registration in respect of the subject lands without its consent.
Perusal of the Gazette Notification dated 28.06.1962 reflects that S.No.2936 thereof pertained to an Idgah at Palamaner, but the columns pertaining to the details of the property relating thereto are left blank and the column relating to the gross-income bears the entry 'Nil'. The Survey Report, upon which the Board places strong reliance, bears the signature of the Assistant Commissioner with the date 27.11.1955. Therein, the Assistant Commissioner recorded the name of the Wakf as 'Idgah-Sunni' but thereunder, he stated that the name of the Wakf was not known. According to this Report, the original Wakf deeds bear T.D.Nos.157 and 811 of Palamaner. In column 12 of the Report, captioned 'Particulars of the Wakf or properties comprised in the Wakf with title-deeds and documents relating thereto', he noted that the name of the Village was Palamaner, with T.D.Nos.157 and 811. As regards Sy.No.963, admeasuring Ac.19-02 cents, under the column relating to 'Annual gross income', he recorded the names of the enjoyers as Syed Yusuff and four others. Thereunder, he stated thus:
'All the lands endowed for the up-keep of the Idgah have been sold away by the inamdars. Only the Idgah remains.' As against column 12(a) relating to 'Encumbrances if any on the properties mentioned in column 12 above', the Assistant Commissioner noted as follows:
'All the inam lands have been alienated some 30 years ago'.
Under column 24 relating to 'Remarks of the Commissioner', it is stated: 'Steps should be taken to recover the alienated lands'. Thereunder, the signature of the Commissioner is found with the date 03.12.1955. These are the documents put-forth by the Board in support of its claim that the subject lands in Sy.No.963 of Palamaner Village and Mandal are Wakf property.
Sri Shafath Ahmed Khan, learned standing counsel for the Board, would contend that these documents are sufficient to support and justify the action of the Board and the registration authorities in denying registration to documents pertaining to the subject lands and insisting upon prior consent of the Board. Learned standing counsel asserted that the mention of 'khairathi inam' in the sale deed, relied upon by the petitioners themselves, clinched the status of the subject lands, and therefore, the adage 'Once a Wakf, always a Wakf' would apply on all fours. It is his case that the shortcomings in the Gazette Notification dated 28.06.1962 would be of no consequence as such notification is only a mere formality and would not have any effect on the status of the Wakf property. He relied upon the judgment of the Supreme Court in SAYYED ALI V/s. A.P.WAKF BOARD, HYDERABAD1.
Section 3[r] of the Wakf Act, 1995 (for short, 'the Act of 1995') defines 'Wakf' to mean the permanent dedication of any movable or immovable property for any purpose recognized by Muslim law as pious, religious or charitable, by a person professing Islam. According to Abu Hanifa, a Wakf is the detention, that is, the tying up of the property in the ownership of the Wakif (trustee), but the usufruct of the property would be spent for charity or other objects beneficial to mankind.
What is therefore essential for creation of a Wakf is that there must be a permanent dedication of property by a person professing Islam. Creation of a Wakf for a temporary period would not be valid and the purpose of a Wakf must be of a permanent and perpetual nature.
Section 4 of the Act of 1995 provides for a preliminary survey of Wakfs. Under Section 4(1), the State Government is empowered, by notification in the Official Gazette, to appoint a Survey Commissioner of Wakfs for the purpose of making a survey of the Wakfs existing in the State as on the date of commencement of the Act of 1995. Under Section 4(3), the Survey Commissioner is required, after making such inquiry, to submit his Report in respect of the Wakfs existing as on the date of the commencement of the Act of 1995, containing the enumerated particulars, one of which is as to the gross income of the property comprised in each Wakf. On receipt of the Report under Section 4(3) of the Act of 1995, the State Government is required to forward a copy of the same to the Board under Section 5(1) of the Act of 1995. After the Board examines the Report, it is required to publish in the Official Gazette, a list of Sunni Wakfs/Shia Wakfs in the State to which the Report relates, whether in existence at the time of commencement of the Act or having coming into existence thereafter, containing such other particulars as may be prescribed. If a question arises as to the status of a property specified as a Wakf property in the list of Wakfs notified under Section 5(2), the Board or the Mutawalli of the Wakf or any person interested therein is entitled to institute a suit before the Wakf Tribunal for decision on the question under Section 6(1) of the Act of 1995. The proviso to Section 6(1) stipulates that no such suit shall be entertained by the Tribunal after expiry of one year from the date of publication of the list of Wakfs.
In the light of the aforestated statutory environment, it is difficult for this Court to accept the submission of the learned standing counsel that the Notification contemplated by Section 5(2) of the Act of 1995 is a mere formality and has no significance. The limitation of one year, prescribed by Section 6(1) proviso, to call in question any entry therein by way of a suit indicates to the contrary. Unless the property is notified as a Wakf property under Section 5(2) of the Act of 1995, the Board cannot baldly assert rights over a property or claim that such property is a Wakf property. To hold otherwise would introduce uncertainty as to the status of a property which may, at any point of time, be claimed by the Board as a Wakf property even in the absence of a Notification relating thereto under Section 5(2) of the Act of 1995.
Under Section 51(1) of the Act of 1995, any transaction relating to a Wakf property is declared to be void unless such transaction is effected with the prior sanction of the Board. This provision therefore has to be read in conjunction with those relating to identification and notification of Wakf properties. It is on the basis of this provision that the Board seems to have addressed letter dated 12.10.2012 to the Collector, Chittoor District. Section 22-A(1)(a) of the Registration Act, 1908 (for brevity, 'the Act of 1908') prohibits registration of documents relating to transfer of immovable properties, alienation of which is prohibited under any statute of the State or Central Government. As a prohibition operates with regard to registration of documents relating to Wakf properties under Section 51(1) of the Act of 1995, unless prior sanction of the Board is obtained, the Board would be justified in asking the registration authorities to enforce the said provision in respect of notified Wakf properties. To that extent, a prohibition would operate under Section 22-A(1)(a) of the Act of 1908 in the absence of prior consent of the Board in respect of notified Wakf properties.
However, the question that arises presently is whether the subject lands in Sy.No.963 of Palamaner Village and Mandal can be treated as Wakf properties. The title deeds bearing T.D.Nos. 157 and 811 of Palamaner Village, whereby the alleged Wakf in respect of the Idgah was created, are not placed before this Court. The Gazette Notification dated 28.06.1962 does not reflect any property particulars in respect of the said Idgah. The Survey Commissioner's Report of the year 1955 indicates that the lands alleged to have been endowed for the upkeep of the Idgah were alienated some 30 years prior thereto. That would mean the alienations took place in the year 1925 or so. The registered sale deed of the year 1929, relied upon by the petitioners in W.P.No.12412 of 2013, no doubt refers to the land dealt with therein as 'khairathi inam'. However, even according to Sri Shafath Ahmed Khan, learned standing counsel, this would only translate to mean a 'charitable gift'. That by itself does not demonstrate that there was a permanent dedication of the land, which is essential for the creation of a Wakf under Section 3(r) of the Act of 1995.
In SAYYED ALI1, the disputed property was notified as a Wakf property in the A.P.Official Gazette under the Wakf Act and it was in this context that the Supreme Court observed that a Wakf is a permanent dedication of the property for purposes recognized by Muslim law as pious, religious or charitable and the property, having been found as Wakf, would always retain its character as a Wakf. Thus, the pre-requisite for the adage 'Once a Wakf, always a Wakf' to apply would be a finding that the property in question is a Wakf property. This sine qua non is missing in the present case.
In D.VENKATA KRISHNA RAO V/s. GOVERNMENT OF ANDHRA PRADESH2, a Division Bench of this Court observed that an intention to set apart a property for giving it in charity may not always constitute a Wakf and there should be an actual setting apart of the property permanently for a pious object. The Division Bench, while dealing with the effect of publication of a Notification of Wakfs under the Wakf Act, extracted the following observations from SAYYED ALI1:
"Parliament has enacted the Wakf Act to provide for better administration and supervision of Wakfs. Under sub-section (2) of Section 5 of the Act the Board is required to publish in the Official Gazette the list of Wakf properties whether in existence at the commencement of the Act or coming into existence thereafter. Section 6 of the Wakf Act further provides that if any question arises whether a particular property specified as Wakf property in the list of Wakfs published under the Act, is a Wakf property or not, the Board or Mutawallis of the Wakf or any person interested therein, may institute a suit in a civil Court of competent jurisdiction for decision of the question and the decision of the civil Court in respect of such matter shall be final. It is also provided therein that no such suit shall be entertained by the civil Court after the expiry of one year from the date of the publication of the list of Wakfs under sub-section (2) of Section 5 of the Act. Sub-section (4) of Section 6 further provides that the list of Wakfs published under sub-section (2) of Section 5 shall, unless it is modified in pursuance of a decision of the civil Court under sub-section (1), be final and conclusive. Therefore, any dispute relating to the character of Wakf property is to be decided in the manner provided under the Wakf Act. Subject to the result of a civil suit, if filed, the list of Wakfs published in the Official Gazette is final and conclusive. In the present case, the disputed property was shown as Wakf property in the A.P. Official Gazette on 30.11.1961 and no suit having been filed challenging the Wakf property, the entries in the Official Gazette describing the property as Wakf became final and conclusive."
The Bench observed that as long as a Notification issued under the Wakf Act remains in force the property notified thereunder is deemed to be Wakf property. The Bench further observed that the Notification issued by the Board only strengthens the factum of such property being Wakf property and it would not be possible to accept the argument that a competent judicial body could not go into the question of the Notification's validity. The Bench opined that unless and until the Wakf Board decides that a particular property was a Wakf property, the question of issuing a Notification declaring it or registering it as such would not arise and therefore, there could not be any doubt that subject to the declaration as to its invalidity, every Notification issued by the Board would be final and conclusive.
Ergo, it is not open to the Board to contend that a Notification under Section 5(2) of the Act of 1995 is a mere formality and is of no importance. Whether a property is Wakf property or not would normally hinge upon its inclusion in the list notified under Section 5(2) of the Act of 1995.
Earlier, in B.GOWRA REDDY V/s. GOVERNMENT OF ANDHRA PRADESH3, a learned Judge of this Court was seized of a similar issue. A challenge was made to a Notification issued by the Wakf Board under the Wakf Act, 1954. The challenge was that the Notification was invalid in law, as neither the original owner nor the persons in possession were put on notice before issuance thereof. Upon a conspectus of the statutory provisions, the learned Judge, following the decision in BOARD OF MUSLIM WAKFS, RAJASTHAN V/s. RADHA KISHAN4, opined that the survey of existing Wakfs under the Wakf Act was not purely an administrative act but partook of a quasi-judicial character in respect of the persons falling within sub-section (1) of Section 6 thereof. As no notice was issued to the persons in possession during the survey under Section 4 of the Wakf Act, it was held that the Notification issued thereafter was not binding on them and it was set aside in so far as they were concerned.
In the present case, there is no indication of the predecessors-in-title of the petitioners being given an opportunity of hearing during the survey undertaken by the Assistant Survey Commissioner under Section 4 of the Act of 1995 or before the Notification was issued under Section 5(2) of the Act of 1995. This was despite the finding of the Assistant Survey Commissioner that the subject land was sold more than 30 years prior to his Report and was in the possession of certain individuals. To compound matters further, the Notification issued on the basis of this Report did not even mention the subject lands as being Wakf property.
It is however the settled legal position that if a property was a Wakf property before the commencement of the Act of 1995, it would continue to be Wakf property. As to whether the property is a Wakf property or not is a question of fact and the Wakf Tribunal would have the jurisdiction to go into such question in a properly constituted proceeding filed before it. However, in the absence of such a finding by the Tribunal, it would not be open to the Board, without even initiating such an exercise, to baldly state that a property is a Wakf property despite the same not being notified or registered under the provisions of the Act of 1995 and seek to enforce a prohibition as to registration of documents relating to such property under Section 22-A(1)(a) of the Act of 1908.
On the above analysis, this Court finds that the subject lands in the sub- divided Sy.No.963 of Palamaner Village and Mandal, Chittoor District, were not notified as Wakf properties under Section 5(2) of the Act of 1995. In the absence of such a Notification, the prohibition envisaged by Section 51(1) of the Act of 1995 would not be attracted. Consequently, Section 22-A(1)(a) of the Act of 1908 would also have no application.
Though Sri Shafath Ahmed Khan, learned standing counsel, did not raise a plea that Section 22-A(1)(c) of the Act of 1908 would have application to the case, the registration authorities stated so in their counter affidavits. Section 22-A(1)(c) deals with a prohibition as to registration of documents, relating to transfer of immovable properties owned by Religious and Charitable Endowments or by Wakfs, executed by persons other than those statutorily empowered to do so. The plain meaning of this provision is that the prohibition thereunder would operate vis--vis the status of the executant of the document. Documents which are executed by persons other than those statutorily empowered to do so would fall within the ambit of this prohibition. The title of the Religious and Charitable Endowment or Wakf in respect of the land is not in issue under this provision and only the status of the executant is. Therefore, communication of a list under this provision, if at all, would be as to the persons who are statutorily empowered to execute documents on behalf of the Religious and Charitable Endowment or Wakf and not a list of properties allegedly owned by the said Religious and Charitable Endowment or Wakf. The list of Wakf properties, as notified under Section 5(2) of the Act of 1995, would be communicated to the registration authorities in the context of the prohibition envisaged by Section 22-A(1)(a) alone and not Section 22-A(1)(c). However, as this Court has already found that the subject lands were not notified as Wakf properties under Section 5(2) the Act of 1995, the prohibition under Section 22-A(1)(a) of the Act of 1908 would not be attracted. The communication of the A.P.State Wakf Board and the consequent communications of the District Collector, Chittoor, and the registration authorities therefore cannot be sustained.
The Writ Petitions are accordingly allowed. The registration authorities are directed to entertain and process the documents presented by the petitioners in respect of the subject lands in the sub-divisions of Sy.No.963 of Palamaner Village and Mandal without reference to the objection raised by the Andhra Pradesh State Wakf Board to the effect that the said lands are Wakf properties. In the event the documents are found to fulfill the requirements of Registration Act, 1908 and the Indian Stamp Act 1899, the registration authorities shall complete the registration formalities and release the documents in accordance with the due procedure. Pending WPMPs in these writ petitions shall stand closed in the light of this final order. No order as to costs.
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SANJAY KUMAR, J.
18th JULY, 2013