Andhra Pradesh High Court - Amravati
Sm Ibrahim, vs The Chief Executive Officer, on 1 October, 2019
Author: M. Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE ACTING CHIEF JUSTICE SRI C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Writ Petition No.25219 of 2011
ORDER:(Per Hon'ble Sri Justice M. Satyanarayana Murthy)
1. This petition under Article 226 of The Constitution of India is filed by S.M Ibrahim claiming writ of certiorari, to call for the records pertaining to errata notification dated 26.04.2008, published in A.P Gazette No.20 Part II dated 15.05.2008, issued by the Chief Executive Officer, A.P State Wakf Board and declare the same as illegal, holding that it is not in accordance with the provisions of The Wakf Act (for short 'The Act') and set aside the same.
2. It is alleged that the petitioner is the owner of the total extent of Ac.3.70 cents in Sy.No.18/1 of Nagarajupally revenue village within the limits of Kadapa Municipal Corporation. It is a personal Inam granted in favour of his ancestors, recognized and affirmed by Inam Commissioner in the year 1860, evidenced by Inam Fair Register, title deed No.3224 dated 14.11.1860. In column No.2 of the Inam Fair Register, the nature of Inam was described as personal Inam, in column No.10, it was mentioned as hereditary in nature. Column No.3 disclosed a paimaish No.66 as the Survey Operations were not yet effected by the year 1860. In Inam Fair Register, in column No.8, the nature of Inam was described as "for subsistence as charity" i.e. given as charity for the subsistence of the grantee. Column No.14 of Inam Fair Register discloses that land stood registered in the name of Smt. Ameen Shah Fakeera in the register prepared according to Regulations XXX1 of 1802. Column Nos.16 to 18 show that, in the year 1860 (year of enquiry by Inam Commissioner) the land was in possession of Bismillah Shah, the 2 HACJ & MSM, J W.P No.25219 of 2011 grandson of Smt. Ameen Shah Fakeera. By successive devolutions one H.S.M.A Manju Meah No.11, became the owner of the property.
3. Sri Manju Meah No.11, bequeathed the said property in favour of his 2nd wife Smt. Dadebi Sheba in the year 1910. She in her turn conveyed part of the property in favour of her daughter i.e. petitoner's mother by name Smt. Khairunnissa under gift settlement deed dated 14.12.1937. After her death, the entire property is devolved upon this petitioner being the legal heir.
4. The petitioner's ancestors have constructed a Mosque which is popularly known as "Amin Shah Mosque". The Mosque and the Tombs occupy only an extent of Ac.0.13 cents out of Ac.3.70 cents. In the later years, public was also allowed to offer prayers and worship in the Mosque. The total extent was succeeded by this petitioner from her ancestors and donated Ac.0.13 cents to the Mosque, Ac.0.03 cents to the municipality for setting up drinking water taps, it is now called as "Manjumiah Park". In the rest of the land, the petitioner mortgaged Ac.0.09 cents to Nazir, S/o.Ghouse Mohiddin, Ac.0.02 cents to V. Naveen, S/o.Rama Murthy, Ac.0.18 cents to Sabjan, S/o.Hameed and Ac.0.20 cents to S.A Sattar who is the husband of the petitioner. The said mortgagee's are in possession and enjoyment of the respective extents. Out of the total extent of Ac.3.70 cents, besides mortgaging various extents of land, the petitioner sold Ac.0.22 cents to P. Ramappa, Ac.0.04 cents to P. Siva Prasad, Ac.0.08 cents to A. Sai Prasad and Ac.0.04 cents to Abdul Lateef. In the rest of Ac.2.67 cents several rooms are in existence and those rooms were let out by the petitioner to different tenants, they are in occupation.
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5. The petitioner narrated the civil litigation, both filed against him and his ancestors and by him against third parties in various paras of the petition. The details of the civil litigation decided by various court both in original, appeal and second appeal filed by him and against him by third parties in the table given hereunder:
S.No. O.S No. and relief prayed for Relief granted
1. O.S No.334 of 1964 filed by M. The suit was dismissed on Ismail against the petitioner 28.06.1966.
herein on the file of District Munsiff Court, Kadapa for declaration of title to the entire property, as the Mosque property.
2. A.S No.165 of 1966, filed by M. Dismissed as withdrawn Ismail against the petitioner with a liberty to file fresh herein on the file of District suit.
Judge, Kadapa.
3. O.S No.368 of 1968, filed by M. The suit was dismissed on Ismail against Abdul Lateef and 09.09.1970 holding that the petitioner herein on the file of petitioner is the lawful Additional District Munsiff, owner of the schedule Kadapa. property.
4. O.S No.402 of 1976, filed by the The suit was decreed on petitioner herein against Chief 31.03.1982.
Executive Officer and Special Officer, A.P State Wakf Board on the file of II Additional District Musiff, Kadapa for declaration of title and perpetual injunction.
5. O.S Nos.41 of 1978 and 42 of Both the suits were 1978, filed by Mosque dismissed by a common Committee against the petitioner judgment holding that the herein (A.P Wakf Board was also Gazette notification dated impleaded as defendant in both 26.03.1964 and errata the suits) on the file of Additional notification dated District Munsiff, Kadapa for 03.09.1978 were defective, declaration of title and delivery as the enquiry under Section of possession. 52 of The Act is not conducted.
6. A.S No.49 of 1982 and 63 of Both the appeals were 1982 (against dismissal of O.S dismissed.
Nos.402 of 1976 and 41 of 1978 and 42 of 1978) respectively on the file of II Additional District Judge, Kadapa.
7. Second Appeal Nos.755 of 1984 Both the Second Appeals and 786 of 1984, filed by the A.P were dismissed on Wakf Board on the file of High 18.04.1989 confirming the Court. decree and judgments in O.S Nos.402 of 1976, 41 of 1978 and 42 of 1978 on the file of Additional District Munsiff, Kadapa.
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6. During pendency of the suits and appeals referred in the above table, three errata notifications dated 03.08.1978, 23.02.1984 and 05.04.1984 were issued and published in A.P Gazette, notification dated 26.03.1964 declaring the schedule property as wakf, by the 1st respondent. The original Gazette notification dated 26.03.1964 is only limited to the extent of the land covered by the Mosque. During pendency of O.S No.402 of 1976 filed by this petitioner, an errata notification dated 03.08.1978 was issued to include total extent of Ac.3.70 cents. Questioning the same, the petitioner herein filed O.S No.274 of 1983 on the file of IV Additional District Munsiff, Kadapa for declaration to declare that the notification is null and void and not binding on the petitioner. The same was dismissed on 18.02.1991, the appeal, A.S No.40 of 1991 on the file of I Additional District Judge, Kadapa preferred against the said decree and judgment was allowed on 27.04.1993, recording a clear finding that no enquiry was conducted by the Wakf Board as contemplated under Sections 4 and 5 of The Act and the petitioner's title over the property was declared in the said appeal, while making an observation that the Wakf Board is at liberty to take up fresh enquiry as per the provisions of The Act, by affording an opportunity to the petitioner.
7. The Second Appeal preferred by the defendants against decree and judgment in A.S 40 of 1991 in S.A No. 605 of 1993 was dismissed with the same observation, by decree and judgment dated 04.02.2002. Thus, in the decree and judgments in O.S Nos. 402 of 1976, 41 of 1978 and 42 of 1978, the original Gazette notification dated 26.03.1964 and errata gazette notification dated 03.08.1978 were declared as invalid and those findings became final. The suit in O.S 5 HACJ & MSM, J W.P No.25219 of 2011 No.274 of 1983 challenging the errata notification dated 03.08.1978 was also confirmed by the appellate courts.
8. Taking advantage of various observations made in A.S No.40 of 1991 and Second Appeal No.605 of 1993, in the name of self serving enquiry which is a novel one and contrary to the provisions of Sections 4 and 5 of The Act, errata notification was issued, giving go-bye to the procedure, the Wakf Board itself appointed it's Chief Executive Officer as Enquiry Officer in Proceedings No.200/Prot/CUD/2000, dated 25.11.2002, without reference to the Board resolution to that effect. The said proceedings were treated as show-cause notice to the petitioner herein and this petitioner submitted an explanation dated 12.12.2002, pointing out the lacunas in the enquiry and mentioned all earlier proceedings. However, no notice was issued expressing intention of wakf board to notify the property as wakf, no sufficient opportunity to put forth his case was given to the petitioner. Therefore, the errata notification dated 26.04.2008 published in A.P Gazette No.20 Part II dated 15.05.2008 is contrary to the provisions of The Act and in view of various proceedings referred in the above table and the decrees passed by various courts is suffice to conclude that the property is not wakf property.
9. It is also brought to the notice of this Court that Writ Petition No.17549 of 2008 was filed by the mortgagee, challenging the very same notification and the same is pending before this Court.
10. As respondent Nos.1 and 2 violated the directions issued by Civil Courts in various proceedings referred above and contrary to Sections 4 and 5 of The Act, issued errata notification, as such the enquiry itself is vitiated by irregularity. Consequently the errata 6 HACJ & MSM, J W.P No.25219 of 2011 notification dated 26.04.2008 is illegal and not binding on this petitioner, prayed to grant the relief as stated supra.
11. Respondent Nos.1 and 2 filed common counter denying all the material allegations inter-alia contending that after commencement of The Act, 1954, Government of Andhra Pradesh appointed Survey Commissioner under Section 4 of The Act, to survey all wakfs and its attached properties existed prior to enactment of The Act or subsequently. Accordingly, Survey Commissioner had submitted a survey report dated 19.02.1956 in respect of Mosque situated at "Guntha bazaar" and sent a list. Due to over sight and inadvertence, the Survey Commissioner, failed to mention the Inam land which was given as wakf to the said institution. So, an errata notification was issued mentioning the extent of Ac.3.70 cents by publication in Gazette No.30 dated 03.08.1978, belonging to the institution. Again further details are given in the subsequent errata notification No.20 Part II Miscellaneous, dated 15.05.2008 at page 486. On the basis of judgment of this Court in S.A No.605 of 1993, an errata notification was issued notifying the Mosque and its property in Sy.No.18/1, measuring Ac.3.70 cents of Nagarajupalli, Kadapa town. The government of Andhra Pradesh had abolished all Inams by Inams (A A) Abolition Act, 1956 and by subsequent amendment Act 16 of 2013 with retrospective effect from 26.11.1956, to the effect that all Inams in the names of individuals are also abolished, except given for religious and charitable purpose in favour of the institutions. So the contentions raised by the petitioner in the petition regarding said land holds no substance, in view of the provisos of Section 4 read with Section 7 of Inams Abolition Act as amended by Act 16 of 2013, the institutions alone are entitled to claim 7 HACJ & MSM, J W.P No.25219 of 2011 rytwari patta, as once wakf is always wakf. The errata notification dated 26.04.2008 is legal and valid, upheld by the Apex Court as well as by the High Court holding that the Gazette-errata relates back to the date of initial publication and something is in existence which is being corrected by issuing errata notification vide judgments reported in 2012 ALD page 385, 2012 (6) ALT 379 (D.B), 2012 (4) ALD 144 and 2012 (4) ALT 136 DB.
12. It is further submitted that earlier one S.M Ibrahim filed O.S No.274 of 1983, challenging the errata notification on the file of IV Additional District Munsiff, Kadapa, the same was dismissed by decree and judgment dated 18.02.1991 and in the appeal in A.S No.40 of 1991 before the I Additional District Judge, Kadapa against the decree and judgment in O.S 274 of 1983, the appeal was allowed with an observation that the Wakf Board is at liberty to take up fresh enquiry in accordance with the provisions of The Act, in respect of properties covered by Sy.No.18/1, affording an opportunity to S.M Ibrahim. The Second Appeal No.605 of 1993 on the file of this Court filed by S.M Ibrahim was dismissed by decree and judgment dated 04.02.2002, in the light of the observations made by the first appellate court that the Wakf Board is at liberty to conduct enquiry and to take action as per the statutory provisions, an enquiry was conducted afresh, affording an opportunity to S.M Ibrahim and issued errata notification.
13. According to Section 6 of The Act, 1954 or The Act, 1995, a Gazette notification has to be challenged within one year, hence, the claim is barred by limitation. As per Section 40 of The Act, 1995, the Board has statutory powers to collect information with regard to any 8 HACJ & MSM, J W.P No.25219 of 2011 property, which it has reason to believe to be the waqf property and any decision taken by the Waqf Board, unless revoked or modified by the Waqf Tribunal is final. No steps were taken by any of the parties interested or aggrieved, against the decision taken by the Waqf Board. Hence, on this ground also, the writ petition is liable to be dismissed.
14. The contention that the Waqf Board cannot appoint Chief Executive Officer to enquire about Waqf Board properties is a misconception. Sections 23 of The Act, empowers the Board to appoint a Chief Executive Officer of the Board to conduct enquiry and therefore, there is no illegality in the enquiry. The respondents denied entries in the Inam Fair Register, while contending that the revenue records clearly show that the old Sy.No.66 measuring Ac.3.70 cents is correlated to new Sy.No.18/1. Whereas the revenue records clearly show that the old Sy.No.301 was divided into 5 bits and its total area is Ac.4.00 cents as against Ac.3.70 cents shown in the Inam Fair Register. Sy.No.18/1 is not at all correlated to old Sy.No.66 as contended by the petitioner and others and the Mandal Revenue Officer issued a certificate, based on Inam Fair Register, title deed No.3224 not correspond to Sy.No.18/1 of Nagarajupalli village of Kadapa District and indeed the number relates to old Sy.No.66 which is corresponding to new Sy.No.301. Therefore, the property being claimed by this petitioner is different from the property notified in the gazette. It is also contended that a waqf 'by user' shall not cease as it is dedicated permanently and pleaded ignorance about filing of writ petition No.17549 of 2008.
15. The core contention of the petitioner is that a statutory remedy under Section 83(2) of The Act is available to this petitioner, evidence is required to be adduced in detail, to establish rights in the 9 HACJ & MSM, J W.P No.25219 of 2011 property, the petitioner has to approach the Tribunal constituted under Section 83 of The Act instead of invoking the extraordinary jurisdiction of judicial review of this Court and this Court cannot decide the disputed question of fact in a writ petition filed under Article 226 of The Constitution of India, while exercising the power of judicial review and prayed to dismiss the writ petition.
16. During hearing, the learned Counsel for the petitioner Sri Roy Reddy would contend that voluminous material produced before the court as additional material on 16.07.2019, would clinchingly establish the rights of the petitioner and his ancestors were affirmed by competent courts in the civil proceedings shown in the above table. Apart from the findings recorded by the courts in various proceedings, the Inam Fair Register is clinchingly establishing that this petitioner and his ancestors are the owners of the property and that the Inam is personal Inam. Therefore the petitioner is entitled to invoke the jurisdiction of this Court under Article 226 of The Constitution of India, since the petitioner is a third party.
17. It is also further contended that when grant was prior to commencement of 1956 Waqf Act, the provisions of The Act, 1956 or 1995 have no application and thereby the only remedy available to the petitioner is under Article 226 of The Constitution of India, the question of approaching the Tribunal under Section 7 of The Act is misconceived and requested to declare the errata notification dated 26.04.2008 published in A.P Gazette No.20 Part II dated 15.05.2008 issued by The Chief Executive Officer, A.P Waqf Board is illegal, while holding that it is not in accordance with the provisions of The Act and set aside the same.
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18. Per contra, the learned Senior Counsel Sri P. Veera Reddy representing Sri Shaik Arifullah, Standing Counsel for the respondents contended that the Inam is not a personal Inam, when the grant was for performing certain duties in the Mosque, it shall be deemed to be a service Inam and the original grantee is entitled to enjoy the usufruct from the property, as long as he continues to serve to the Mosque. But the claim of this petitioner, based on the entries in Inam Fair Register but survey number mentioned therein is not corresponding to old Sy.No.66, whereas errata notification published is corresponding to old Sy.No.66. Therefore, in the absence of correlation between old survey number and new survey number, the Court cannot decide such disputed question while exercising power of judicial review under Article 226 of The Constitution of India.
19. Yet, another contention is raised before this Court that the remedy available to the petitioner is to approach the Tribunal under Section 7 of The Act and cannot invoke the jurisdiction of this Court under Article 226 of The Constitution of India and the result of the writ petition is depending upon adjudicatory fact and not jurisdictional fact. Therefore, this Court cannot decide such issue of fact. He placed reliance on several judgments which will be discussed at appropriate stage.
20. Considering rival contentions, perusing the material on record, the points that arose for consideration are:
1. Whether the errata notification dated 26.04.2008 published in A.P Gazette No.20 Part II dated 15.05.2008 is in accordance with law and whether this Court can exercise power of judicial review under Article 226 of The Constitution of India, when a statutory remedy under 11 HACJ & MSM, J W.P No.25219 of 2011 Section 7 of The Act is available to the petitioner to challenge the errata notification dated 26.04.2008?
2. Whether the land of an extent of Ac.3.70 cents in Sy.No.18/1 is corresponding to old Sy.No.301, if not the errata notification is valid?
POINT No.1:-
21. The main contention of the petitioner is that, he is the owner of the land of an extent of Ac.3.70 cents in Sy.No.18/1 of Nagarajupalli village within the limits of Kadapa Municipal Corporation. The original grant was in the year 1860, it was classified as Inam for "subsistence as charity" i.e. given as charity for the subsistence of the grantee i.e. ancestors of this petitioner Smt. Ameen Shah Fakeera in whose name the Inam was registered in the Inam Fair Register and the proceedings prepared under Act 31 of 1802. The entire documents disclose that the Inam was in favour of Smt. Ameen Shah Fakeera and later it was succeeded by the petitioner as narrated in the Para No.2 of the affidavit filed along with this petition. To establish this fact, the petitioner relied on extract from Inam Fair Register of the year 1860 which disclose the name of Smt. Ameen Shah Fakeera as grantee as Inam, in an extent of Ac.3.70 cents in Sy.No.18/1 of Nagarajupalli village of Kadapa District. This grant is a personal grant, Mosque is built in an extent of Ac.0.13 cents, it cannot be treated as a grant in favour of Mosque and the Mosque was constructed long after the grant and by the date of grant in favour of Smt. Ameen Shah Fakeera, no Mosque was in existence and therefore, the grant in favour of this petitioner cannot be said to be a service Inam for rendering any service in the Mosque by Smt. Ameen Shah Fakeera. Even otherwise, Smt. Ameen Shah Fakeera being a woman is not entitled to manage the affairs of the Mosque and therefore the grant in favour of Smt. Ameen Shah Fakeera is deemed to be a 12 HACJ & MSM, J W.P No.25219 of 2011 personal grant, according to the contention of the petitioner. But the respondents contended that it is a grant in favour of religious institution i.e. Mosque. Therefore, it shall be a waqf property and the petitioner cannot be allowed to contend that it is a personal grant in favour of Smt. Ameen Shah Fakeera. No doubt, if it is a service Inam or grant in favour of a Mosque or grant for rendering any service in the Mosque, while grant is in favour of an individual, the contention of the respondent is to be accepted. But the Inam Fair Register disclose that it is purely a personal grant and that too a Mosque was not in existence as on the date of the original grant in the year 1860.
22. The learned counsel for the petitioner in support of his contention that the Inam Fair Register is the main document, to decide the nature of the property, when the property is Inam land, placed reliance on judgment of Privy Council reported in Arunachellam Chetty and others vs. Venkata Chalapathi Goruswamigal1. The Apex Court while deciding the nature of property allegedly belonging to Hindu Religious Endowments, based on certain documents, the Court held that the Inam register though made for the ultimate purpose of determining whether the lands were or not tax free, its preparation was a great act of state; and though the entries therein would not displace actual and authentic evidence in individual cases, great weight was to be attached to the entries when such evidence was not available. That great weight attached also to the decree which was passed long ago, based on such Inam Fair Register. Thus, in view of the law declared by the Apex Court, weight has to be given to the Inam Fair Register of the year 1860 produced before this Court and if such weight is given to, the title of Smt. 1 AIR 1919 PC page 62 13 HACJ & MSM, J W.P No.25219 of 2011 Ameen Shah Fakeera for the property in dispute, the Court has to accept the contention of this petitioner. But the learned Senior Counsel for respondents would contend that, when a grant is made in favour of individual and it is for rendering service, it shall be treated as a grant in favour of an institution and not a personal grant, he placed reliance on judgment of Apex Court in Sayyed Ali and others vs. A.P Wakf Board, Hyderabad and Others2, wherein it was held that wakf is a permanent dedication of 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 wakf. In other words, once a wakf always a wakf and the grant of patta in favour of Mokhasadar under the Inams Abolition Act does not, in any manner, nullify the earlier dedication made of the property constituting the same as wakf. After a wakf has been created, it continues to be so for all time to come, further continues to be governed by the provisions of The Act and a grant of patta in favour of Mokhasadar does not affect the original character of the wakf property.
23. In the facts of the above judgment, the notification dated 26.04.2008 was issued under Section 5 of The Act and published in official gazette No.20 Part II, dated 15.05.2008. Thereafter, dispute was raised that the property was a grant in favour of Smt Ameen Shah Fakeera and the property was not a wakf property. In fact it was Inam in favour of named individuals. The question that was raised before the Apex Court is that whether the property was Inam and whether such Inam land is in a ryotwary, zamindari or inam village and, whether such inam land is held by any institution. But the third question is relevant for the purpose of deciding the real controversy before this Court. The 2 (1998) 2 Supreme Court Cases 642 14 HACJ & MSM, J W.P No.25219 of 2011 Hon'ble Apex Court while deciding the third question held that though the grant was made in favour of individual, the wakf which is a permanent dedication would retain its character and it is not in favour of an individual.
24. Turning to the present facts of the case, the petitioner claiming title to the property based on the original grant in favour of Smt. Ameen Shah Fakeera and the entries made in the Inam Fair Register, 1860 which shows that the grant was purely personal and not for rendering any services. Even otherwise, if the Mosque is in existence by the date of grant in favour of Smt. Ameen Shah Fakeera, there is possibility to accept that contention based on the principle laid down in the above judgment. The learned counsel for the respondents also placed reliance on the Division Bench Judgment of this Court in D. Venkata Krishna Rao v. Government of A.P, represented by Principal Secretary, Revenue Department, Hyderabad3. The Division Bench of this Court analysed character of wakf and while dealing with an issue regarding character of wakf, held that:
(1) Mohamedan Law of wakf owes its origin to a rule laid down by the Prophet and means "tying up of property in the ownership of God and Almighty and the devotion of the profits for the benefit of human beings".
(2) When a founder dedicates the property for a wakf, the ownership of the property is completely extinguished.
(3) When once it is declared that a particular property is wakf or any such expression is used implying wakf or the documents shows that there is dedication for a pious charitable or religious purpose, the right of the person is extinguished and the ownership is transferred to the Almighty. The manager of wakf is mutawalli.
Though mutawalli is the administrator, governor, superintendent 3 2012 (6) ALT 379 (D.B) 15 HACJ & MSM, J W.P No.25219 of 2011 or curator of the wakf property, he has no right in the property belonging to the wakf.
(4) The dedication need not specifically be in favour of a place of worship, khankah, Dargah, cemetery etc. It is enough if the dedication is made for the purpose recognised by Muslim law as pious, charitable or religious.
(5) Service Inam granted to individuals burdened with service for the purposes which are pious, religious or charitable, answers description of all the ingredients of wakf.
(6) Even if the grant of the land is for rendering service to wakf, the construction of Mosque or khankah on the land itself is sufficient proof of dedication to wakf.
(7) When once the property is held to be wakf, it always retains its character as a wakf and the grant of patta to service inamdars and persons in possession, does not in any manner change its character.
(8) In a case where the inam is service inam for rendering service in connection with a pious, religious and charitable purpose, the holder of the inam burdened with service does not acquire title to that property. If the land is resumed from such inamdar for non- performance of service and re-granted to another person it only means that the wakf is entrusted to another individual to perform service.
25. When once, grant is made in favour of an individual, for rendering services to the wakf or a Muslim religious institution, it is deemed to be a wakf property, his grant is in favour of institute and it will retain its character forever and the individual has no right to claim title over the property in personal capacity.
26. There is no dispute with regard to law declared by the Division Bench of this Court with regard to nature of grant, but in the present case, the grant is not for rendering any services to the Muslim religious institution to treat it as a wakf, i.e. the grant in favour of a Muslim religious institution and the respondent did not produce a piece of paper, to accept the gazette notification and errata notifications issued 16 HACJ & MSM, J W.P No.25219 of 2011 thereto. At best, the original extent of Ac.0.13 cents in which Mosque is constructed can be treated as wakf and the property which is in occupation of the petitioner till date cannot be treated as wakf property for the limited purpose of deciding the present issue.
27. In the same judgment, when an identical question relating to errata notification came up for consideration, the Court held that when errata notification is published, it dates back to the date of initial notification. The Wakf Board can itself collect information regarding any wakf property, held enquiry by issuing notice to the concerned and register it as wakf property, if it is satisfied. Such power of Wakf Board is not subordinate power of state government to appoint Survey Commissioner. The question whether a particular property notified by a Wakf Borad is a wakf property or not to be adjudged by the Wakf Tribunal in a suit instituted for the purpose and the High Court cannot entertain writ petition in relation to the dispute to the question or any matter relating to wakf and also the power of the Wakf Board to cause registration of wakf or to amend registration of wakf under Section 41 of The Act. Thus in view of the law declared by Division Bench, Wakf Tribunal alone is competent and the High Court cannot entertain writ petition to decide any dispute in relation to a writ, in view of interdict under Sections 6, 7, 83 and 85 of The Act. In the same judgment, the Division Bench is of the view that while conducting enquiry, a notice is required to be issued to the concerned, by the Wakf Borad and to register it as a wakf property, if it is satisfied. If this principle is applied to the present facts of the case, it is the duty of the Wakf Borad to issue notice before issuing any such notification and that too when Wakf Board is aware about various proceedings in O.S No.368 of 1968 on the file of 17 HACJ & MSM, J W.P No.25219 of 2011 Additional District Munsiff, Kadapa, O.S No.402 of 1976 on the file of Additional District Munsiff, Kadapa, A.S No.49 of 1998 on the file of II Additional District Judge, Kadapa, the proceedings in Second Appeal NO.755 of 1984 on the file of this Court, A.S No.40 of 1991 on the file of I Additional District Judge, Kadapa and Second Appeal No.605 of 1993 on the file of this Court, O.S No.711 of 1982 on the file of III Additional District Munsiff, Kadapa, A.S No.30 of 1986 on the file of I Additional District Judge, Kadapa. But the Wakf Board did not follow the procedure laid down by the Division Bench of A.P High Court in the judgment referred supra. The suit in O.S 368 of 1968 was filed by M. Ismail against Abdul Lateef and the petitioner herein to establish his title and possession over the suit schedule property, but the respondents herein, the Wakf Board or its officials are not parties to the said suit. Therefore, whatever decree passed in O.S 368 of 1968 dated 09.09.1970 by the Additional District Munsiff, Kadapa is not binding on the respondents. Whereas in O.S 402 of 1986, 41 of 1978 and 42 of 1978 on the file of II Additional District Munsiff, Kadapa, the Wakf Board is one of the defendants. Whereas S.M Ibrahim and Guntha Bazaar Mosque Committee represented by its President S.A Ghani, filed suits for various reliefs including declaration of title, setting aside the errata notification etc. In O.S No.368 of 1986 and O.S No.334 of 1964, the relief is for declaration of title and the nature of the property and other consequential reliefs. O.S No.41 of 1978 filed by President of Guntha Bazaar Mosque Committee, is for declaration of title and other reliefs. In O.S No.42 of 1978 the plaintiff therein claimed the same relief of declaration of title and recovery of possession. The Court while deciding all the suits by a common judgment, decreed the suit in O.S 402 of 1975 while dismissing other suits in O.S No.41 of 1978 and O.S No.42 of 18 HACJ & MSM, J W.P No.25219 of 2011 1978. Thus, a declaration was granted in favour of the plaintiff in O.S No.402 of 1976 through whom the present petitioner is claiming title. Even in the appeal also, the judgment was confirmed and ultimately the civil litigations are disposed of by various courts including the High Court holding that the Wakf Board did not follow the procedure while issuing errata notifications.
28. During pendency of the appeal before High Court, the errata notification was issued as admitted by the respondents in the counter. Thus, the respondents are aware about the claim of the petitioner and his ancestors. But no notice was issued before registering the property as wakf which is a mandatory as per the Division Bench of High Court of A.P, referred supra. When errata notification was issued without notice or without following the procedure prescribed under law, such notification cannot be held to be valid. On this ground alone, the errata notification dated 26.04.2008 is liable to be set aside. In another judgment of the Division Bench of High Court of A.P in W.A No.772 of 2007, A.P State Wakf Board represented by its Chief Executive Officer vs. Syed Amanulla Hussaini and others, identical question came up for consideration. Writ Petition was filed, questioning the notification dated 30.03.1989 issued under Section 4(3) of The Act, through which the land comprised in Sy.Nos.1913, 1914, 1917 and 1278 of Nirmal Village and Mandal, Adilabad District measuring 2.35 guntas, 1.16 guntas and Ac.0.32 guntas respectively was notified as wakf property. But the learned Single Judge allowed the petition and while deciding the appeal, the Division Bench referring the law declared by the High Court of A.P in B. Gowra Reddy v. Govt. of A.P.,Revenue 19 HACJ & MSM, J W.P No.25219 of 2011 Department, Hyderabad4, and held that failure to follow the basics of natural justice was vital to the declaration of the disputed land as wakf property and dismissed the appeal, while making it clear, that the order passed by the learned Single Judge and the judgment shall not hold the appellant from initiating fresh action for declaring the disputed property as wakf under the provisions of The Act, 1995 issuing appropriate notification after giving notice. In Golusu Ramulu vs. A.P Wakf Board, rep by its Secretary, Nampally Hyderabad and others5 an identical question came up before the learned Single Judge of High Court of A.P for the State of Telangana and the State of Andhra Pradesh, as to maintainability of writ petition was decided by the learned Single Judge and held that Wakf Tribunal has not been conferred jurisdiction under Sections 6 and 7 of The Act and to decide the validity of the action of the state government in publishing a notification in the gazette, notifying the list of wakf properties. Therefore, the writ petitions challenging such gazette notifications are maintainable, thereby due to lack of jurisdiction to state or statutory bodies are undoubtedly amenable to judicial review under the writ jurisdiction.
29. The learned Single Judge also considered the scope of Section 4 of The Act, 1995, Section 12 (2) of The Act and concluded with use of the word or in sub-section 2 of Section 112 is only to cover all actions. The said word does not in any way deal with which language or the action will be safe, notwithstanding repeal of The Act, 1954. Wakf Commissioner enquiry prepared under Section 4(4) of The Act cannot be the basis for issuance of gazette notification and thereby the High Court under Article 226 of The Constitution of India can entertain writ petition 4 2002 (3) ALT 439 5 2017 (3) ALT 349 20 HACJ & MSM, J W.P No.25219 of 2011 and decide the issue as to the validity of the notification. The learned Single Judge after elaborate consideration of the entire law on the issue, arrived to such conclusion. Therefore, in view of the law declared by the two judgments of Division Bench and learned Single Judge of this Court, the writ petition is maintainable, questioning the errata notification as no notice was issued, undisputedly. In such case, it is difficult to accept the contention of the respondents that this Court lacks jurisdiction in view of the bar under Sections 6, 7, 83 and 85 of The Act.
30. Though both the counsel raised several contentions with regard to the title and jurisdiction of the Court, it is the basic principle of law that while taking any action against the property, principles of natural justice are to be followed i.e. affording an opportunity to the party claiming such relief by issuing notice in the mode prescribed under law. But here the respondents are aware about the litigation pending and disposed of by the courts as on the date of issuance of errata notification dated 26.04.2008. Still respondents did not issue any notice before registering the property as a wakf, published the same in the gazette, such action of Board is in violation of principles of natural justice as held by the two Division Benches in the writ petitions. Though in D. Venkata Krishna Rao (3rd cited supra), the Division Bench concluded that civil court has no jurisdiction. In the earlier judgment of another Division Bench and later judgment of learned Single Judge, it is clear that writ petition is maintainable. The Division Bench in D. Venkata Krishna Rao (3rd cited supra) referred therein judgments of Apex Court in para No.17 which ousts the jurisdiction of civil court and based on various judgments ousting the jurisdiction of the civil court, the Division Bench of the High Court, accepted the contention of the respondent that the 21 HACJ & MSM, J W.P No.25219 of 2011 writ petition cannot be entertained under Article 226 of The Constitution of India, questioning the errata notification with reference to Section 83(9) of The Act.
31. In any view of the matter, even according to the above referred judgments, when a dispute is raised with regard to the procedure followed in issuing errata notification, a notice is required to be issued and when no notice was issued, the errata notification is invalid and illegal. In view of the law declared by the Apex Court, the High Court can entertain writ petition, since the petitioner has no knowledge about the issuance of such errata notification till the date of filing writ petition before this Court and at the same time, the limitation to file a suit under Section 7 of The Act before the Tribunal is only one year from the date of notification. When no notice was issued before registering the property as wakf property and publishing the same in the official gazette in utter violation of the principles of natural justice, the writ petition can be entertained under Article 226 of The Constitution of India, following the law declared by the Division Bench of this Court referred above in B. Gowra Reddy (4th cited supra) and the learned Single Judge of this Court.
32. As discussed above, the respondents did not issue any notice before issuance of errata notification and the said fact is also admitted in para No.3 of the counter, wherein it is specifically pleaded that S.M Ibrahim filed O.S No.274 of 1983 on the file of IV Additional District Munsiff, Kadapa, challenging the errata notification and the suit was dismissed. The appeal preferred against the judgment vide A.S No.40 of 1991 before the I Additional District Judge, Kadapa was allowed with a specific observation that the Wakf Board is at liberty to take up fresh 22 HACJ & MSM, J W.P No.25219 of 2011 enquiry in accordance with the provisions of The Act in respect of wakf properties covered in Sy.No.18/1, giving an opportunity to the present petitioner i.e. S.M Ibrahim. The second appeal preferred in S.A No.605 of 1993 by the Wakf Board before the High Court was dismissed on 04.02.2002, in the light of the observations made by the first appellate court, the Wakf Board is at liberty to conduct an enquiry and to take up action as per the statutory provisions. This admission is sufficient to conclude that they are aware about claim of the petitioner's ancestors over the property, but failed to issue notice before conducting enquiry under Section 4 of The Act, affording reasonable opportunity to the petitioner before registering the property as wakf by publication in the gazette, even according to the judgment of the Division Bench referred supra, a notice is required to be given to the persons interested or claiming. In the present facts of the case, S.M. Ibrahim/plaintiff in O.S No.274 of 1983, challenged the errata notification in the suit, but the suit was dismissed. However, the appeal filed against judgment in the suit and second appeal, both were allowed declaring the notification as illegal. In such case, before issuing notification and registering the property as wakf, an opportunity shall be given at least to the petitioner in compliance or adhering to the principles of natural justice. Despite, the observation made by the first appellate court in A.S No.40 of 1991 on the file of I Additional District Judge, Kadapa directing to conduct fresh enquiry in accordance with the provisions of The Act, giving an opportunity to the persons who filed the suit. The person who filed the suit was S.M Ibrahim/petitioner herein, but no notice as directed by the court in A.S No.40 of 1991 was issued before issuing gazette notification. Hence, the errata notification dated 26.04.2008 issued by Wakf Board which is impugned in this writ petition is contrary to the direction and in 23 HACJ & MSM, J W.P No.25219 of 2011 violation of principles of the natural justice. As stated above, by applying the principles laid down in Golusu Ramulu (5th cited supra), we hold that the errata notification dated 26.04.2008 issued was without adhering to the direction issued by the I Additional District Judge, Kadapa in A.S No.40 of 1991 and in violation of principles of natural justice same is liable to be set aside, giving liberty to the 2nd respondent to conduct enquiry after affording an opportunity to the petitioner and take appropriate action. Accordingly, this point is answered. POINT No.2:-
33. In view of our finding on point No.1, there is no need to decide the title to the property based on the original grant vide Inam Fair Register, 1860 and other contentions regarding the title to the property, since, we set aside the errata notification dated 26.04.2008 on the ground of violation of principles of natural justice and violation of direction issued by the I Additional District Judge, Kadapa in A.S No.40 of 1991, leaving it open to decide such issue, in the Enquiry under Section 4 of The Act.
34. In view of our foregoing discussion, we find that the errata notification dated 26.04.2008 impugned in this writ petition is hereby set aside with a liberty to conduct necessary enquiry affording an opportunity to this petitioner before registering the property in Sy.No.18/1 of an extent of Ac.3.70 cents of Nagarajupalli village as wakf by issuing notification and decide the objections if any, raised by the petitioner, on receipt of notice during the enquiry.
35. In the result, the writ petition is allowed, setting aside the errata notification dated 26.04.2008 published in A.P Gazette No.20 Part II, dated 15.05.2008, by declaring the same as illegal. However, liberty is
24 HACJ & MSM, J W.P No.25219 of 2011 granted to the Wakf Board i.e. respondent Nos.1 and 2 herein, to conduct necessary enquiry under Section 4 of The Act, 1995 and take appropriate action under Section 5 of The Act if necessary, before registering the property in dispute as wakf and the observations made hereinabove with regard to the title to the property will have no bearing. The Enquiry Officer appointed under Section 4 of The Act, is directed to dispose of the objections, if any, filed by this petitioner, uninfluenced by the observations or findings if any, recorded hereinabove.
36. Consequently, miscellaneous petitions, pending if any, shall stand closed.
____________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR ___________________________________ JUSTICE M. SATYANARAYANA MURTHY 01.10.2019 Rvk