Telangana High Court
M. Nazeer Pasha vs The Joint Collector, on 23 February, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 19536 OF 2013
ORDER:
Petitioner questions A.P. Gazette Notification No. 28-A, dated 13.07.2006 which included land in Survey Nos.95, 96, 97 and 98 at Sangala Village, Gadwal Mandal, Mahabubnagar District as waqf property, as illegal. Consequently, a direction is sought to the 1st respondent to dispose of the pending Appeal in File No. F2/IA-35/2010 filed by the 4th respondent against grant of Occupancy Rights Certificate (ORC) granted by the 2nd respondent in respect of the above land in favour of petitioner and his family members without being influenced by the Gazette Notification.
2. Petitioner and his brothers claim to be the absolute owners of the subject agriculture land. The land's historical classification as Kyrathi Inam is documented in Khasra Pahani 1954-55 and Sethwar 1334 Fasli. Gadwal Samasthan initially settled the land in favour of Abdul Khader, with subsequent sale to Pasha's family in 1994. In response to the nature of the land governed by the AP(TA) Abolition of Inams Act, 1955, Pasha and his family approached the 2nd respondent for an ORC. 2
It is stated that the 2nd respondent, after thorough inquiry and local inspection, on 19.02.2009 in file No. B / 5795 / 2000 granted ORC in favour of petitioner and his family members and the same was implemented in Revenue Records by recording their names as pattadars and possessors.
While so, the 4th respondent claiming to be Muthawalli of Dargah, filed an Appeal under Section 24(1) of the Abolition of Inams Act, 1955. Relying on Gazette Notification No. 28-A dated 13.07.2006, the 3rd respondent notified the land as Waqf Property. The 4th respondent seeks to annul the ORC based on this Notification. It is further stated that no enquiry was conducted by any authority as required under Sections 4(3) and 5(2) to include the above land in the list of Waqf.
It is asserted that the notification is illegal, against natural justice and contravenes the 1954 and the 1955 Act. Reference is made to legal precedents (W.P. No. 681/1997), indicating that notifications issued without due procedure were deemed illegal by the Hon'ble High Court. The Division Bench in Writ Appeal No. 745 of 2002 upheld the Single Judge's order. The Hon'ble Supreme Court dismissed the SLP against the Division Bench's judgment dated 21.03.2011.
3. One Syed Yaqoob Mohiuddin, who claims to be the Muthawalli of Dargah HZT Syed Shah Maroof Peer Quadri (RH) 3 and its attached property situated at Sangal Village, Gadwal Mandal, Mahabubnagar District filed I.A.No. 1 of 2022 to implead himself as the 5th respondent to the Writ Petition. It is stated therein that himself and his brothers are absolute owners of the land in an extent of Acs.27.09 guntas in subject survey numbers at Sangala Village, Gadwal Mandal, Mahabubnagar District. Originally, the nature of the above land is being recorded as Kyrathi Inam in Khasra Pahani 1954-55 and also as per Sethwar 1334 Fasli. The Village Sangala is a Jagir Village under the Gadwal Samasthan and the said Samsthan have settled the above land in favour of one Abdul Khader as Inam land. After death of Abdul Khader, his grandsons namely Syed Abdul Haq Auadri and Abdul Kareem Quadri sold the said Inam land to petitioner and his family members in 1994.
It is stated that Munthakab No.70 of 1953 in file No.H/4518/A of RDO, Gadwal, lands bearing Survey Nos.1011, 1035, 1039 of Gadwal Village and present subject lands bearing Survey Nos. 95, 96, 97 and 98 of Sangala Village were permanently endowed in favour of Dargh Hzt. Syed Shah Maroof peer Quadri Rh. At Gadwal and in the said Munthakab it is clearly mentioned that the said lands are conditional Inam. As per Sethwar 1334 Fasli (1940 AD), subject lands are already mutated in the name of Maroof peer sahib (i.e. Dargah Hzt. 4 Maroof peer Quadri) vide No.B/8176/61 of Tahsil Gadwal. These documents clearly shows that the subject lands having been endowed to Dargah, well prior to preparation of Khasra Pahani 1954-55 and recorded as such in government record as per Khasra Pahani 1954-55, the subject land are declared as Waqf properties by the Commissioner of Waqfs appointed by the State Government under the provisions of Waqf Act. The same is notified as Waqf published in A.P. Gazette No.28-A, dated 13.07.2006, at Sl. No. 26030 Gadwal Taluk. It is a fact that Dargah Maroof peer is a Waqf institution and subject lands are endowed to the said Waqf institution and as per Section 51 of the Waqf Act, 1995, alienation of waqf property is totally prohibited and it alienating by way of gift, sale exchange or mortgage are void and void ab-initio.
It is stated that the 4th respondent Mr. Syed Khaja Wajiuddin Chisti expired on 30.05.2019 and prior to his death, he had given NOC for appointment of the proposed respondent as Muthawalli of said Dargah, accordingly, he was appointed as such to Dargah Maroof peer (Rh) and its attached property total admeasuring Acs.39.10 guntas in Survey Nos. 1011, 1038, 1039 admeasuring Acs.12.01 guntas and Survey Nos. 95 to 98 admeasuring Acs.27-09 guntas, total admeasuring Acs.39.10 guntas at Sangal Village, Gadwal Mandal, Mahabubnagar 5 District. Therefore, the proposed respondent is a necessary party to this Writ Petition. It is further stated that this party filed Petition before the 2nd respondent Collector to implead himself to prosecute the Appeal.
It is the case of this proposed party that in 1954- 1955 Kasra and even prior to the same, his ancestral names have been recorded as owners of the land as reflected in Kasra Pahani from 1954-1955 onwards as Kidmat Inam. Thereupon after being in possession continuously for more than six decades for land admeasuring Acs.39.10 guntas at Sangal Village, the said land was notified as Waqf vide Gazette Notification No.28-A, dated 13.07.2006. It is stated that the Inspector Auditor Waqfs, Mahabubnagar filed Form-I declaration dated 21.02.2004 before the Revenue Divisional Officer, Gadwal enclosing the Waqf record of the above Wakf Institution for issuance of ORC in the name of Dargah Hzt. Maroof Peer and its attached Inam lands bearing Survey Nos. 1011, 1038, 1039 Gadwal and 95 to 98 total admeasuring Acs. 39.10 guntas situated at Sangal Village in the light of Inam Abolition of Amendment Act and also the 3rd respondent i.e. Chief Executive Officer, A.P. State Waqf Board, Hyderabad also addressed letters to the Revenue Divisional Officer, Gadwal with a request to issue ORC in the name of Waqf Institution. 6
It is stated that the Revenue Divisional Officer, Gadwal issued ORC in favour of petitioner and his deceased brother M. Maqbool Pasha who expired on 06.01.2001 i.e., (much prior to grant of ORC) without issuing any notice to the 3rd respondent Waqf Board or the 4th respondent who was the then Muthawalli. It is further submitted that Notification declaring the land in Survey Nos. 1011, 1038, 1039 admeasuring Acs.12.01 guntas and Survey Nos. 95 to 98 admeasuring Acs.27.09 guntas, total admeasuring Acs.39.10 guntas at Sangal Village vide A.P. Gazette No.28-A dated 13.07.2006 Serial Number 26030 Gadwal (Tq), is prior to grant of ORC to petitioner and his deceased brother which was on 2009 and it was incumbent on the Tahsildar who granted ORC to notify the Waqf and Muthawalli regarding the proposed grant of ORC to petitioner and his deceased brother and not doing so constituted violation of natural justice. This coupled with the fact that ORC was given to Petitioner and his deceased brother made the grant of ORC illegal and liable to be set aside.
It is stated that the 4th respondent made all the above said submissions in Appeal before the 2nd respondent Collector for cancellation of petitioner ORC and the said 2nd respondent granted stay of operation of the ORC which order is still in operation. Petitioner in the present Writ Petition in an 7 effort to get over the proceeding before the Collector and avoid appearing before the said Collector in the Appeal, filed the present Writ Petition for setting aside Gazette Notification and obtained stay of appeal with sole object of avoiding appearance in the Appeal. The ground taken in Writ Petition which was without any basis that the Gazette notification itself be cancelled and on that baseless ground itself, stay was obtained on the Appeal pending before the Collector which a separate proceeding and which has nothing to do with the validity of the Waqf notification. It is further stated that obtaining ORC before the Tahsildar was fraudulent as notices were not given either to the Waqf or Muthawalli. In spite of the fact that Gazette Notification (2006) is prior to grant of ORC (2009).
It is stated further that proceeding before the Collector challenging the ORC is a separate and distinct proceeding and already resulted in grant of a stay against the operation of the ORC. Petitioner in effort to subvert that proceeding filed the present writ petition with sole object of stalling appeal proceeding before the 2nd respondent Collector on baseless ground of challenge to Gazette notification notifying the said property as a Waqf. Not only Gazette is prior to Petitioner ORC in the present writ petition, the said challenge is without any basis and done to only stop proceeding before the 8 Collectrate. A challenge to Waqf notification published in the Gazette itself may not result in suspension of any proceedings before the Revenue Authorities concerning the grant of ORC etc. to the 3rd party. If that were so, any 3rd party can file a writ petition challenging the Gazette Notification declaring the property as Waqf and then seek for suspension of all pending proceedings before the Revenue Authority concerning the said land. Therefore, stay itself may be vacated.
It is further stated that one person, who was the beneficiary of ORC along with petitioner, expired on 06.01.2001 i.e., M. Maqbool Pasha, even before grant of ORC which was on 19.02.2009. Hence, prima facie the very grant of ORC was fraudulent and deserves to be set aside. At any rate, the stay had been granted which has resulted in suspension of a pending proceeding before the 2nd respondent Collector Revenue Authority for the past eight years. The same may not be stalled merely because there is challenge to a Waqf notification.
It is submitted that petitioner cited Writ Appeal No. 745 of 2002 and Writ Petition No.12275 of 1993 which is wholly inapplicable to the facts of the present case. In Writ Appeal, this Court held that when ORC precedes the date of declaration of Waqf under Gazette, in such case, the occupancy right holders have to necessarily be given notices before declaration of said 9 property as Waqf property and not doing so violates principles of natural justice. In the instant case, as stated hereinabove, declaration of above said property as Waqf property vide Gazette Notification took place vide A.P. Gazette No. 28-A dated 13.07.2006, at Sl. No.26030 Gadwal Taluk, whereas the ORC vide File No. B/5795/2000 dated 19.02.2009 was after declaration of property as Waqf property. Hence, as per the facts of the present case, declaration of property as Waqf property preceded grant of ORC by three years and hence, the ratio of the decision of this Hon'ble Court in Writ Appeal and Writ Petition No. 12275 of 1993 are wholly inapplicable to the facts of the present case since in those cases, grant of ORC preceded that of declaration of property. It is finally stated that by virtue of stay granted in 2013, Petitioner is interfering with possession of the proposed respondent at the above said Dargah/Waqf land who is Muthawalli appointed to the said Dargah from exercising any rights over the said land and this is resulting in constant friction between petitioner and proposed party. Hence, said stay petition may be vacated. Further, petitioner illegally and fraudulently sought to sell the said lands and done so to certain third parties in an extent of Acs.08.00 in Survey No.No.95 of Sangal Village. Having come to the notice of the 2nd respondent who has informed the Tahsildar that stay having been granted 10 in the said Appeal against ORC, any sale having taken place thereafter is illegal and invalid and directed the Tahsildar to take immediate action with regard to the same.
4. The proposed party Syed Yaqoob Mohiuddin was impleaded as the 5th respondent by order dated 01.09.2022 in I.A.No. 1 of 2022.
5. The 3rd respondent - Chief Executive Officer of the Waqf Board filed the counter-affidavit stating that as per Munthakab No. 70 of 1953 in File No. H/4518/A of RDO, Gadwal, lands bearing Survey Nos. 1011, 1035, 1039 of Gadwal Village and present subject lands bearing Survey Nos. 95, 96, 97 and 98 of Sangai Village were permanently endowed in favour of Dargah Hzt. Syed Shah Maroof Peer Quadn Rh at Gadwal and in the said Munthakab, it is clearly mentioned that lands are conditional Inam as per Sethwar 1334 Fasli (1940 AD) the subject lands are already mutated in the name of Maroof Peer Sahib (ie Dargah Hzt. Maroof peer Quadri) vide No. B/8176/61. These documents clearly show that subject lands have been endowed to Dargah, well prior to preparation of Khasra Pahani 1954-55 and recorded as such in the Govt record. As per the Khasra Pahani 1954-55 Sri Syed Mohammed Khader sab s/o Syed Abdul Khadar Sab was the Inamdar and Moulim Abdul Rahman sab R/o Gadwal was the cultivator on 11 yearly lease for the period from 1360 to 1364 Fasli. Subsequently, the subject lands are recorded as Waqf properties as per survey conducted by the Commissioner of Waqfs under the provisions of the Act. The same is notified as waqf published in A.P. Gazette No. 28-A, dated 13.07.2006, at Sl. No. 26030 Gadwal Taluk belongs to Dargah Hzt. Maroof Peer Quadri Rh. situated at Gadwal village. It is a fact that Dargah Maroof Peer is a Waqf institution and subject lands are endowed to the said Waqf institution and as per Section 51, these lands cannot be alienated, gifted, sold, exchanged or mortgaged and subject lands are meant for the benefit of religious institution. Further, it is stated that possession of person over such land as on the crucial date of vesting i.e. 01.11.1973 would only entitle him to claim ORC. As per the Pahani for 1973-74, petitioner or his family members was in possession over the subject lands. As per the report of Tahsildar, Gadwal No. C/8749/2008, dated 20.11.2008 in which he submitted a report to the RDO, Gadwal that petitioner and his family members came into possession of suit lands by virtue of unregistered sale deed dated 20.04.1999 only, it gives to understand that they were not in possession as on 01.11.1973. After 20.07.1955/01.11.1973 when Inams were abolished and vested in government, any sale is void, thus they had no right to claim ORC under Section 4(1) of the Inams 12 Abolition Act, but the RDO, Gadwal issued ORC without speaking order in favour of petitioner and allegedly a dead person namely M. Maqbool Pasha who is the brother of petitioner. The RDO gravely erred in ignoring to pass a reasoned order before the grant of ORC which is mandatory.
The Inspector Auditor Waqfs, Mahabubnagar filed Form-I declaration dated 21.02.2004 before the RDO Gadwal duly enclosing Waqf record of the above waqf institution for issuing ORC in the name of Dargah Hzt. Maroof Peer and its attached Inam lands bearing Survey Nos. 1011, 1038, 1039 and Survey Nos. 95, to 98 total extent of Acs.39.10 guntas situated at Sangala village, Gadwal Mandal in the light of Inam Abolition (Amendment) Act and the 3rd respondent ie. Chief Executive Officer also addressed letters to the RDO Gadwal with a request to issue ORC in the name of Waqf Institution. The President, District Waqf Committee, Mahabubnagar also submitted list of waqf properties mandal-wise of Gadwal Division to the RDO Gadwal with a request not to issue ORC in the name of any individual vide letter dated 03.04.2007 but the RDO, Gadwal issued ORC in favour of Sri M.Nazeer Pasha s/o Subhan Miyan. Petitioner and his deceased brother late M. Maqbool Pasha in File No. B/5795/2000 dated 19.02.2009 ignoring all the relevant material on record and facts and also without issuing 13 any notice to Wakf Board. It is further stated that petitioner and his family members have no right over the lands in question and they were not in possession of the said lands either on the notified date or any other date under any capacity and mere recording their names, if any in cultivation column of the said lands does not give any right to them. It is settled law that any order or decree in favour of dead person can never be operated upon, thus, the ORC in favour of deceased pasha is void. In such an event, the RDO should have given a speaking and reasoned order as to how he arrived at such conclusion that lands are non-Waqf. In this regard, the 4th respondent filed an Appeal before the Joint Collector, Mahabubnagar for cancellation of said ORC wherein stay of operation of ORC was granted till disposal of the Appeal, but petitioner illegally sold the subject land bearing Survey No. 95 to an extent of Acs. 8.00 guntas to other persons vide registered document dated 02.02.2012 and the stay order of the Joint Collector are in force.
It is stated that petitioner has not made out any case by stating that the 1st respondent is being influenced by the alleged impugned Gazette notification. The Appeal filed by the 4th respondent is pending with the 1st respondent and petitioner is a party to the said Appeal and instead of contesting the said Appeal, he approached this Court invoking the 14 extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Therefore, the present Writ Petition is liable to be dismissed on this ground alone.
6. In the additional counter filed by the State Waqf Board, it is asserted that the Waqf Act, 1995, being a Central enactment, defines 'Official Gazette' or 'Gazette' as the 'Gazette of India or the Official Gazette of a state.' The respondent emphasizes that the Gazette serves as an official mode of notice to the general public regarding existence of waqf institutions. The respondent underscores the significance of the gazette as an official communication document for informing the public about the renowned Sufi Saint Syed Shah Maroof Peer Quadri's Dargah, also known as Maroof Peeran. It is argued that the legislative intent behind the Waqf Act was to establish a statutory process for the administration of Auqaf. This respondent further explains the process leading to delayed publication of gazette notification due to removal of monetary impediments by Amendment Act 27 of 2013. It emphasized the waiver of cost of survey by the State Government under Section 8 of the Act, which led to delayed publication of gazette notification. The respondent argues that petitioner's claim, seeking a mandamus, is erroneous, especially after the Amendment Act 27 of 2013.
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Respondent refutes the petitioner's attempt to quash the gazette notification for the subject waqf lands, emphasizing that properties were legally surveyed and notified under the Waqf Act of 1954. As per the file bearing number 1157/CW.III/69, of the Survey Commissioner Waqf annexed as remarks to the survey form bearing number 13 and that also being that of the survey commissioner waqf, the subject waqf lands are falling under survey Nos. 1011, 1038, 1039 admeasuring Acs.11.39 guntas. Respondent quotes relevant Sections of the 1995 Act, defining 'beneficiary' and 'Waqf.' It is argued that petitioner's attempt to challenge the gazette notification, stressing the legality and conclusiveness of the survey and notification process. Under Section 3 (a), 'beneficiary' means a person or object for whose benefit a waqf is created and includes religious, pious and charitable objects and any other objects of public utility sanctioned by the Muslim law. Under Section 3(r), 'Waqf' means permanent dedication by any person, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable. Under Section 3(r) (iii) "grants" including mashrut- ul-khidmat for any purpose recognised by the muslim law as pious, religious or charitable.
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The respondent details the quasi-judicial exercise conducted by Survey Commissioners of Auqaf, independent authorities appointed by the State Government. The respondent highlights the submission of survey reports, scrutinization, and subsequent publication in the gazette as per the established legal procedure. Now adverts to the statutory Quasi Judicial exercise conducted by the Survey Commissioners of Auqaf who had been being independent authorities appointed under section 3 (p) "Survey Commissioner" means the Survey commissioner of Waqf appointed under sub-section (1) of section 4 and includes any Additional or Assistant Survey Commissioners of Auqaf under sub-Section (2) of Section 4 by the then State Government who had conducted the survey of innumerable Auqaf properties in the erstwhile composite State in adherence to the due procedure contemplated as per law and had thereafter submitted Survey Commissioners Report/s to the State Government identifying more than forty eight thousand of Auqaf properties that had been dedicated to various subject waqf institution/s previously by the donors and also included the erstwhile rulers of the Qutub Shahi and Asif Jahi Dynasties.
The respondent emphasizes that the gazette served as official notice to the public about the existence of waqf properties. It is requested to consider the prevalent situation 17 during the post-independence era, particularly the limited modes of communication in semi-urban and rural India. The respondent argues that the gazette, newspapers, and local beat of drums were valid means of communication, and the survey process was legally concluded over three decades ago.
The respondent draws attention to the infrastructure scenario in India during 1960s and 1970s, emphasizing open lands, an agrarian economy, and limited literacy rates. The respondent asserts that the prevalent communication methods, such as newspapers and beat of drums, were valid and appropriate during that era. Respondent pleads for court's consideration of the historical context and prevailing conditions during post-independence era. The need to evaluate the case based on the India of 1960s is emphaized, stressing the rural and semi-urban setting, limited communication infrastructure, and validity of the methods employed for communication.
Respondent submits that the subject properties in rural India, primarily situated in vicinities inhabited by farmers, were notified under the Waqf Act of 1954. The local revenue personnel, with the assistance of the concerned grassroots officials, validly carried out the notification process, utilizing methods like beat of drums and notice affixing, as the Waqf Act 18 did not explicitly specify modes of service. Addressing the citation of Emperor v. Leslie Gwilt (1944) 47 Bom. L.R., the respondent contends that illiterate individuals, like Mahar community may not comprehend detailed orders, justifying the use of alternative means for public notice, as reflected in the notification procedures carried out. It is emphasized that Survey Commissioners of Waqf, appointed under the Waqf Act 1995, performed quasi-judicial and official acts in line with the statute. The survey forms, bearing signatures of local authorities, indicate due procedure in service of notices. The respondent cites Shiv Sagar Tiwari v. Union of India 1 highlighting that publication in newspapers constitutes sufficient notice. This respondent acknowledges the Inam lands burdened with service attached to Dargha of Syed Shah Maroof Peer Quadri. The Inam proceedings confer the original grant and entitlement to the Sajjadanashin, conditioned for service to the waqf institution.
The respondent argues that petitioner erroneously seeks annulment of conditional service Inam through quashing of gazette notification, intertwining both issues. The respondent highlights that this contention contradicts the objectives restored by the Amendment Act No. 19 of 1994.
1 (1997) 1 SCC 444 19 The respondent disputes petitioner's entitlement to Auqaf properties under the amended laws and asserts that the writ petition is legally untenable. It is argued that writ petition is time-barred, referencing the one-year limitation period imposed by the amended Section 6 of the Act. The respondent asserts that principles of natural justice cannot be invoked to contest the survey conducted in the 1962-1974 period. In para 29, the respondent highlights the financial constraints leading to publication delays but asserts that this does not impact the validity of the survey or subsequent actions. The respondent disputes the petitioner's contention of erroneous misinterpretation of the law and emphasizes the statutory amendments that render the instant writ petition not maintainable. He relied on Lal Shah Baba Dargha Trust v Magnum Developers 2, the relevant portion extracted as hereunder for convenience of perusal " Even by the 2013 amendment in Section 85 of the Act, they have also ousted the jurisdiction of the revenue court or any other authorities along with the civil court. Meaning thereby the legislatures wanted to make sure that no authorities apart from the Tribunal constituted under Section 83 of the Act shall determine any dispute, question or other matter relating to a waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property under this Act.
2 AIR 2016 SC 318 20 Under section 85 of the Waqf Act 1995 - Bar of jurisdiction of civil courts - No suit or other legal proceeding shall lie in any civil court, revenue court and any other authority in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal.
"107. Act 36 of 1963 not to apply for recovery of wakf properties.--- Nothing contained in the Limitation Act, 1963 shall apply to any suit forpossession of immovable property comprised in any wakf or for possession of any interest in such property."
Section 6 Disputes regarding Waqf [Auqaf1, The Wakf Act, 1995 (1) If any question arises whether a particular property specified as wakf property in the list of Auqaf is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person aggrieved therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final:
The respondent cites the Full Bench judgment in Writ Appeals, asserting that existence of waqf properties has been established for five centuries. Relevance of judgments relied upon by the writ petitioner, emphasizing the amendment to Section 6 of the Waqf Act 1995 is disputed. The respondent cites the judgment in Sayyed Ali v. A. P. Waqf Board, Hyderabad 3, emphasizing the permanent dedication of waqf properties. The judgment in Faqruddin v. Tajuddin 4 underlining that revenue authorities cannot decide questions of title is relied.
3 (1998) 2 SCC 642 4 (2008) 8 SCC 12, 21
7. Petitioner filed reply-affidavits to the counter filed by the 3rd respondent Wakf Board President, Mahabubnagar. In the letter dated 10.02.2009, it is clarified that these lands were erroneously listed as waqf properties and were subsequently removed from the list by order of the Hon'ble High Court. This correction was duly reflected in the Wakf register. Despite this, the present Inspector of Wakf resumed claiming the land to be Wakf property, contradicting the earlier findings and causing unwarranted disputes. According to Khasra 1954-55 and Sethwar 1314 Fasli, the mentioned lands are recorded as Khairathi Inam Lands, not waqf properties. The Revenue Divisional Officer granted Occupancy Right Certificates (ORC) in file No. B/5795/2000, dated 19.02.2009, after thorough investigation, however, inclusion of these lands in Gazette Notification dated 13.07.2006, without proper inquiry as mandated by Sections 4 & 5 of the Wakf Act, 1995, casts doubt on the integrity of the process. The 1st respondent openly declared his intent to adhere to the Gazette notification during the appeal, potentially compromising the fairness of the proceedings. Citing the judgment in B. Goura Reddy v.
Government of Andhra Pradesh 5, the counter-affidavit argues that any Gazette notification including lands as Wakf properties 5 AIR 2002 AP 331, 22 without a proper inquiry is subject to being set aside. The Hon'ble Division Bench's order on Writ Appeal No. 745/2002, dated 21-03-2011, further supports this stance. The counter- affidavit contends that the impugned Gazette notification, which inaccurately designates the private Inam land as Wakf property, should be nullified, urging the 1st respondent to re-evaluate the Appeal impartially, considering evidence submitted by the petitioner. Acknowledging an inadvertent error in filing Writ Petition along with ORC granted to petitioner's brother, it is clarified that ORC for both himself and his brothers was issued in a common file No. B/5795/2000 dated 19.02.2000. Petitioner contends that inclusion of their land in Wakf Notification lacked proper inquiry by the Enquiry Officer, as mandated by Sections 4 and 5 of the Wakf Act, 1995. Petitioner emphasizes the absence of any conducted enquiry, asserting that the impugned notification is illegal, unlawful, and violates the principles of natural justice. Petitioner highlights alignment with the judgment in Goura Reddy case, confirmed by the Division Bench and dismissed by the Supreme Court, establishing the illegality of including their land in the notification.
8. Heard Sri M. Damodar Reddy, learned counsel for petitioner, Sri Ashutosh Balchandra Joshi, learned Standing 23 Counsel for Waqf Board and Sri B. Mayur Reddy, learned counsel for the 5th respondent.
9. After hearing learned counsel for petitioner as well as learned Standing Counsel for Waqf Board, perusing the judgments of the Hon'ble Supreme Court as well as this Court, it is to be seen that the 4th respondent filed Appeal before the District Collector under Section 24(1) of the Inams Abolition Act, 1995 against the order dated 19.02.2004 on the file of the Sub- Collector, Gadwal. The prayer in the Writ Petition is two-fold: 1) to declare the gazette as illegal, unlawful and 2) direct the respondents to dispose of the pending Appeal without being influenced by the Gazette Notification. If this Court accepts the first prayer, it is nothing but dismissing the Appeal filed by the 4th respondent at the threshold.
10. Keeping in view the same, this Court is not inclined to pass such an order. The Writ Petition is therefore, dismissed. However, liberty is given to petitioner to raise all objections and grounds raised in this Writ Petition before the Appellate Authority. It is needless to say that the 4th respondent shall dispose of the Appeal within a period of eight weeks from the date of receipt of a copy of this order, on merits, uninfluenced by the conclusion arrived at in this Writ Petition. No costs. 24
11. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 23rd February 2024 ksld