Madras High Court
A.Anees Aysha vs The Tamil Nadu Wakf Board on 18 July, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.(MD)No.14658 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 07.04.2022
PRONOUNCED ON : 18.07.2022
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.(MD)No.14658 of 2021
and WMP.(MD)Nos.11589 & 11592 of 2021
1.A.Anees Aysha
2.A.Hasana
3.Ahmed Siraj Mohideen
Through power agent
4.I.Ahamed Ibrahim
5.I.Mohammed Ismail
6.I.Mohammed Gani
7.A.Amathul Hameetha
8.A.Jameel Fathima
9.V.M.A.Peer Mohamed
10.A.Aysthathul Munavara Beham
11.P.Amathul natheera
12.A.P.Rohan Rasheed
13. M.Ahamed Kabeer
14.M.A.Hajara Hameeda
15.M.A.Aabitha
16.A.Nizath Yasmeen ... Petitioners
vs.
1.The Tamil Nadu Wakf Board,
Rep.by its the Chief Executive Officer,
Sarang Street, Chennai.
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W.P.(MD)No.14658 of 2021
2.The Chief Executive Officer,
The Tamil Nadu Wakf Board,
Sarang Street,
Chennai.
3.Nawab Wallajah Sahib Pallivasal
Rep.by its Secretary ,
No.31, Cheran Mahadevi Road,
Pettai, Tirunelveli 620 004.
4. M.KajaMohideen
5.P.Gani
6.S.Peer Mohammed
7.Rahmath Nisha
8.K.Sheik Abdul Kadher
(R4 to R8 are impleaded vide Court order
dated 22.03.2022 in WMP(MD)No.4127 of 2022)
9.M.Peer Fathima
10.M.Syed Mohamed
R9 & R10 are impleaded vide Court order
dated 22.03.2022 in WMP(MD)No.4129 of 2022)
11.M.Ahamed Hussain
12.M.Azeez Mohideen
13.M.Mohamed Ali
14.K.Mohamed Yusuf
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W.P.(MD)No.14658 of 2021
15.M.Mumtaz @ M.Jasmine Mumtaz
(R11 to R15 are impleaded vide Court Order
dated 07.04.2022 in WMP(MD)No.5004 of 2022) .. Respondents
Prayer : Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari, calling for the records of the impugned
proceedings of the 2nd respondent in Vide File No.2245/82/B1/TNV dated
30.01.2020 (Last portion of the Waqf Register in Reg.No.488/TNV)
including the subject lands measuring 140 acres in Survey No.1 to 11 (all its
sub-division), T.S.No.455 to 497 of Karuvelankulam Village, Tirunelveli
District as Additional Waqf Proprty of 3rd respondent Pallivasal and quash
the same as illegal and against the provisions of the Waqf Act, 1995.
For Petitioners : Mr.M.Vallinayagam
Senior Counsel
for Mr.D.Nallathambi
For R1 & R2 : Mr.G.Chandrasekar
For R3 : Mr.G.Prabhu Rajadurai
For R4 to R8 : Mr.P.Valiappan
for M/s.P.V.Law Associates
For R9 & R10 : Mr.J.Barathan
for Mr.G.Mohankumar
For R11 to R15 : Mr.V.Raghavachari
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W.P.(MD)No.14658 of 2021
ORDER
I have considered the arguments advanced by the learned Senior Counsel for the petitioners and the learned counsels for the newly impleaded respondents to support the case of the petitioners.
2. I have also considered the arguments advanced by the learned counsel for the Waqf Board and the 3rd respondent Waqf (Pallivasal) and the Government.
3. I have also perused the affidavit and counter affidavits, the documents and the case laws filed in support of the rival contentions of the parties hereto.
4. This writ petition has been filed for a writ of Certiorari to call for the records in the impugned proceedings of the second respondent/Chief Executive Officer of the Tamil Nadu Waqf Board in his proceedings, dated 30.01.2020 vide File No.2245/82/B1/TNV (Last portion of Waqf Register in Register No.488/TNV) including 140 acres of land in Survey Nos.1 to 11 (all its Sub-division), T.S.No.455 to 497 of Karuvelankulam Village, Tirunelveli 4/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 District as Additional Waqf Property of third respondent Pallivasal (Waqf).
5. The point for consideration in this Writ Petition is whether the third respondent Waqf (Pallivasal) is entitled to include 140 Acres of land in S.No. 1 to 11 (all its Sub-division), T.S.No.455 to 497 of Karuvelankulam Village, Tirunelveli District, into their Register of Properties maintained for the purpose of Section 37 of the Waqf Act, 1995?”
6. This is the third attempt of the respondents 1 to 3 to wrest the property from the clutches of the petitioners and their alienee’s by including 140 acres of the land in Survey No.1 to 11 (all its Sub-division), T.S.No.455 to 497 of Karuvelankulam Village, Tirunelveli District as Additional Waqf Property of the third respondent Pallivasal (Waqf) by making an entry in the Waqf Register maintained by the third respondent in terms of Section 30(d) of the Waqf Act, 1995.
7. Land in Karuvelankulam Village, Tirunelveli District was originally said to have been dedicated by the Nawab of Carnatic during the 10th Century for the support of third respondent Nawab Wallajah Sahib Mosque [Pallivasal (Waqf)].
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8. An entry in the Inam Fair Register dated 01.05.1865 also contains an entry to that effect. In 1905 an extent of 140 acres (out of 276 acres) attempted to be partitioned among the predecessors of the petitioner's family.
Later another partition deed was said to have been executed in the year 1917.
However, this was not acted upon as they had no rights over it to partition.
9. In 1948, The Tamil Nadu Estate (Abolition and Conversion into Ryotwari) Act, 1948 was enacted. Formerly, referred to as The Madras Estate (Abolition and Conversion into Ryotwari) Act, 1948 ( hereinafter referred to as Abolition Act, 1948.
10. The Government of Madras decided to take over certain Inam Estates under the Abolition Act, 1948. Lands in Karuvelankulam Village, Tirunelveli District were notified vide G.O No.2302, Revenue dated 1.9.1951 issued under Section 3 of the then Abolition Act, 1948. I shall refer to it as the Abolition Act for brevity.
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11. Facts on record also indicate that in the Fort St.George Gazette Notification dated 13.05.1954, under section 5(2) of the Waqf Act, 1954, the land in question was shown as the property of the 3rd respondent Waqf.
12. Descriptive Memoir of Karuvelangulam Village dated 21.09.1961 prepared for the take over of the land under the Abolition Act, 1948 indicates that the land was taken over by the Government on 01.10.1951.
13. After the resettlement, the total extent of land in S.No.11 was 171.84 Acres. The said Descriptive Memoir of Karuvelangulam Village dated 21.09.1961 further states that “These inams are inams not forming part of the former estate but without a title-deed”.
14. The Descriptive Memorial of Karuvelangulam Village in Tirunelveli, District maintained under the Abolition, Act, 1948 categorized the land into two parts as detailed below:-
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-- According to Revenue Department According to Settlement Wet Dry Mana Garden Grass Total Wet Dry Grass Total vari Patta Patta ACS ACS ACS ACS ACS ACS ACS ACS ACS ACS
1.Accessed 26.15 76.96 --- --- 1.00 103.11 29.59 82.41 --- 112.40 occupied
2.Assessed -- 2.69 -- --- -- 2.69 -- -- -- -- unoccupied
3.T.D.Inams -- -- -- -- -- -- -- -- -- --
4.A.I -- -- -- -- -- -- -- -- -- --
5.Unassessed -- -- -- -- -- 1.00 -- -- -- --
6. -- -- -- -- -- 46.09 -- -- -- 55.91 Porambokes
7.Ground -- -- -- -- -- -- -- -- -- 3.53 rent Total 26.15 79.65 -- -- 1.00 152.69 29.99 82.41 -- 171.84
15. Later in the year 1961, Settlement pattas were issued for 171.84 acres of land inKaruvelangulam village in Tirunelveli District. The predecessors of the petitioners were issued with Ryotwari Settlement Patta under the Abolition Act, 1948 for an extent of 171.84 acres though there is a bar under the Act for issue of Patta for certain categories of land. Total extent of 171.84 acres, there was 141.85 acres of land and 29.99 acres of water body in Karuvelangulam village in Tirunelveli District.
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16. Later in the year 1963 Ryotwari Settlement Pattas were said to have been issued in favour of few others for an extent of 7.47 acres of land in Karuvelangulam village in Tirunelveli.
17. There are no serious dispute that pattas were granted in 1961 and 1963 though copies of pattas have not been filed for perusal.
18. The Government of Tamil Nadu also approved for payment of Tasdik Allowance under section 38(1) of Abolition Act, 1948 vide G.O Ms 267 dated 17.01.1961 to the third respondent Waqf.
19. In the Year 1967 Mr. Shah Ali Abbaskhan (a members of the petitioners family) filed a petition before the Board of Revenue against the grant of Tasdik Allowance to the 3rd respondent Waqf. The Board of Revenue by its Proceeding No.672/68 dated 29.10.1968 held as follows:-
“From an entire review of the facts on record, the Board, finds that the claim of the appellant is devoid of merits and is based on misconception of facts. It therefore direct(s) that the appeal petition be and is hereby rejected.; It is upto the appellant if so advised to move the civil court which is the proper forum for a declaration of his right”.9/74
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20. The Board of Revenue by above Proceeding No. 672/68 dated 29.10.1968 thus gave liberty to the said Shah Ali Abbaskhan Sahib to establish his right regarding Tasdik Allowances before competent Civil Court under the provision of Abolition Act.
21. Thereafter, Mr.Shah Ali Abbaskhan Sahib filed a suit before the Subordinate Court, Tirunelveli in O.S.No.31 of 1971.The issue in O.S.No.31 of 1971 was confined only with regard to the payment of TasdikAllowance under Section 38 of the Abolition Act.
22. O.S.No.31 of 1971 was dismissed by the Trial Court vide Judgment and Decree dated 07.11.1972. The said Judgment confirmed that the two villages namely, Karuvelangulam and Thulukkarkulam Villages in Tiruvelveli District were taken over under the provisions of Abolition Act.
Relevant portion from the said judgment reads as follows ;-
“There is absolutely no reason to set aside the order of the Board in Ex. B-3 as it is based on the entries found in the Inam Fair Register and the decision rendered by the High Court to the effect that Abdulla Mian Sahib has no right either to ValajaPallivasalPartached Mosque or to the Inams attached to the Mosque. This issue is found against the plaintiff.” 10/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021
23. While answering issue No.1, the Trial Court confirmed that both the Tulukarkulam and Karuvelangulam were “inam villages”. The above, finding of facts rendered by the Trial Court remains un-assailed till date either by the third respondent or by the petitioner’s predecessors, to whom, the ryotwari patta was granted in the year 1961 measuring to an extent of 171.84 Acres consisting of 141.85 acres of land and 29.99 acres of water body.
24. The Trial Court also confirmed that the 141.85 acres of land was notified as Waqf property in the Fort St.George Gazette Notification dated 13.05.1954. It stated that the Government was granting Tasdik Allowances to the institution which was entitled to the land and that the suit villages are not personal Inams.
25. In the year 1982 the petitioners and their predecessors decided to plot a certain area for construction of houses so they filed an application before the Panchayat Union, Mannur. The said application was approved by the Commissioner of Panchayat Union, Mannur vide Mu.Mu 3403/1982 dated 01.10.1982. Gift deedwas also executed on 08.04.1985 in favour of the 11/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 TamilNadu Government for surrendering a portion of land for Public Purpose.
26. In 2004, the petitioners again decided to plot certain extent of land for construction of houses (area measuring 4.96 acres). They also filed application before the Secretary of Tirunelveli Town and Country Planning Department.
27. The said application was also approved by the Commissioner of Tirunelveli Corporation, vide Na.ka No 2877/04/E3 dated 08.05.2007 and simultaneously a gift deed was executed in favour of Tirunelveli Municipal Corporation on 08.05.2007.
28. Again in the year 2010, the petitioners decided to plot a certain extent of land for construction of houses (area measuring 11.33 acres). They therefore filed an application before the Director of Tirunelveli Town and Country Planning Department. The said application was approved by the Commissioner of Tirunelveli Corporation, vide Na.ka No 3243/2010/TP4 dated 03.05.2012 and a gift deed was executed in favour of Tirunelveli Municipal Corporation on 08.03.2012.
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29. The records maintained by the Waqf Board in the Waqf Register of the third respondent Waqf also indicates that the land in Karuvenkulam Village were not originally included in the list of properties of the third Respondent Waqf as is contemplated under Section 29(3(a) and Section 30 of the Waqf Act, 1995 (Formerly, Section 25(3)(a) and Section 26 of the Waqf Act, 1954).
30. Entry No.13 (b) in the Waqf Register of the third respondent maintained by the respondents 1 and 2 until the impugned entry was made read as under:
Item No. Value Income Q.Rt.Cess Tax
------ -------- -------------------- ---------- ------
------ ------- -------------------- ---------- ------
13(b) Dastic
allowance, yeomiah
allowance interim
payment of
compensation
amount paid from
1242-11-8 - -
the taken over the
villages
InamThulukarkula
m and
InamKaruvelangula
m
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31. It is the case of the respondents, that respondent had come to know about the history of the Inam property only in the year 2009. Earlier, an attempt was made by the former Muthavalli of the third respondent Waqf to take control over the property which have been systematically alienated by the petitioner and their family members.
32. The first attempt was made by filing O.S.No.209 of 2012 before the Principal Sub Judge, Tirunelveli. The suit was filed by the Secretary of the third respondent Waqf, namely, M.Kader Batcha. Among other prayers, there was a prayer for a declaration that the third respondent was the owner of the suit schedule property and for a direction to the defendants therein to hand over vacant possession and to remove encroachments.
33. In the said suit, about 80 persons were arrayed as defendants, which included several alienees, who were in possession of land in the form of temples, Schools, Office of the Thasildar, Office of the Waqf Board, the Commissioner of Tirunelveli Municipal Corporation and private owners holding smaller extents of land. It appears the alienees have put up constructions.
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34. In the said suit, I.A.No.632 of 2012 came to be filed under Order 7 Rule 11 of the CPC to reject the plaint. A detailed but a confusing order was passed by the learned Principal Subordinate Judges, Tirunelveli while allowing I.A.No.632 of 2012.
35. The Principal Subordinate Judges, Tirunelveli, by an order, dated 02.04.2013 held the suit to be defective for want of notice under Section 89 of the Waqf Act, 1995 (Section 56 of the Waqf Act,1954) and therefore, the plaint was rejected.
36. That apart, it was held that the suit filed by the for recovery of the suit property was without jurisdiction as only the Waqf Board could institute a suit.
37. The plant in O.S No 209 of 2012was also rejected on the ground that there was a discrepancy in description of the property in the schedule to the plaint.
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38. Aggrieved by the aforesaid order dated 02.04.2013 passed by the Principal Subordinate Judge, Tirunelveli in I.A.No.632 of 2012 in O.S.No. 209 of 2012, the then Secretary of the third respondent Waqf filed C.R.P(MD).No.715 of 2014 under Section 227 of the Constitution of India before this Court.
39. The third respondent however filed an affidavit to the effect that CRP(MD).No.715 of 2014 may be permitted to be withdrawn with a liberty to workout remedy in a way known to law. Ostensible reasons for withdrawing was on account of the decision of this Court in CRP.(MD).No. 1562 of 2012 vide order dated 11.12.2012. Thus, the first attempt to retrieve the land was aborted.
40. A second attempt made to retrieve the property from the clutches of the petitioners, the descendants of the original patta holder and alienees some of whom have been arrayed as private respondents herein by the third respondent Waqf by filing W.P.(MD).No.10034 of 2015 before this Court.
The said writ petition was filed for a “Writ of Certiorarified Mandamus to call for the records pertaining to the taking away of the landed properties 16/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 belonging to the above Waqf Pallivasal and issuing Ryotwari Patta to the encroachers of the above Waqf properties, and all other consequential illegal and void orders passed on the above properties and quash the same in the light of justice.”
41. W.P.(MD).No.10034 of 2015 was however dismissed by this Court vide order dated 31.10.2015. In the above order, it was observed as under:-
“31. Further, I find from the perusal of materials on record that the petitioner/Pallivasal was receiving Tastick Allowance under Section 38(1) of the Act 26/1948. When the petitioner/Pallivasal had admitted that they are receiving Tastick allowance, now the present contention of the petitioner/Pallivasal that only after the year 2009, they came to know about the ryotwari patta proceedings initiated during 1961, cannot be accepted. Further, I find that the possession of the subject properties was also not with the petitioner/Pallivasal from the year 1905 onwards.”
42. Ultimately, the writ petition was dismissed with the following observations.
17/74https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 “32. The petitioner/Pallivasal relied upon the order dated 29.10.1968 passed by the Board of Revenue/ Commissioner for Land Revenue, Prohibition, Excise and Settlement of Estates, and the judgment passed in O.S.No.31 of 1971 by the Subordinate Judge, Tirunelveli, dated 07.11.1972; but a perusal of the said proceedings, I find the inam was granted only to the Waqf.
33. But, having failed to challenge the notification dated 01.09.1951 and having kept quite during the proceedings of issuance of ryotwari pattas, now after 54 years, the petitioner/Pallivasal cannot question the same, because it is clearly hit by laches. Moreover, subsequently, various transactions had taken place and as contended by the learned senior counsel for the private respondents, now various government buildings and other buildings have been constructed in the subject properties. No proper explanation has been given by the petitioner/Pallivasal for the laches. On this sole ground alone, the writ petition is liable to be dismissed.
38. Similarly, it is submitted by the learned senior counsel for the private respondents that the subject property was not notified as Waqf property under Section 5(2) of the Waqf Act, and as such the Waqf Board itself cannot initiate the proceedings. But, I find that in the Fair Inam Register pertaining to the year 1856 itself, an entry was made to the effect that the 18/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 subject properties belong to the Waqf, though it was not notified as Waqf property under Section 5(2) of the Muslim Waqf Act, 1955. Hence, as to whether the Waqf Board is empowered to initiate the proceedings to recover the property or not, cannot be decided in this writ petition, since the said question has to be decided only based on the evidence.
There is disputed question of facts. Hence, I am not inclined to render any finding on this aspect, as this Court is not conducting any roving enquiry, in the present writ petition filed under Article 226 of the Constitution of India. In the result, for the foregoing reasons, the writ petition is liable to be dismissed on the of ground of laches. Accordingly, the writ petition is dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.”
43. The aforesaid decision of the learned Single Judge of this Court was taken on further appeal before the Hon’ble Division Bench of this Court in W.A.(MD).No.7 of 2016 by the third respondent.
44. The above Writ Appeal was also dismissed by the Hon’ble Division Bench after considering elaborate submission of the parties therein on 30.4.2019. The decision of the Hon’ble Division Bench is reported in 19/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 2019(3) CTC 625. The operative portion from the decision of the Hon’ble Division Bench reads as under:
“17. In this appeal, questions arise for consideration as to whether the allegations of the appellant are sufficient to decide that the private respondents had obtained Patta by playing fraud and the serious disputed facts could be decided in the writ petition filed invoking Article 226 of the Constitution of India.
18. It is also well settled that with regard to fraud, there shall be specific pleading and proof and the burden of proof lies on the person who alleges fraud. In the matter on hand, admittedly even in the year 1905, the property in dispute was partitioned through a registered deed and Pattas were issued in favour of the private respondents in the year 1961 by the Settlement Tahsildar. It is also not disputed that the suit instituted by the appellant before the competent forum was struck off at the instance of the private respondents and the Civil Revision Petition filed questioning the order was also withdrawn by the appellant for the reasons best known to him.
19. By virtue of Section 3(b) of Tamil Nadu Estates Abolition Act, 1948 the entire Inam estate shall stand transferred to the Government and vest with them free from all encumbrance, however, it is subject to the preexisting right of the Ryots or land owners to get Ryotwari Patta under the provisions of Act. Section 11 of the Act deals with issuance of Patta to the Ryots and under Section 12, the land owners are entitled to get Ryotwari Patta. Once Patta is issued under the above said provisions, aggrieved persons have 20/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 to prefer an appeal and no civil suit lie questioning the issuance of Patta. According to the private respondents, Ryotwari Patta had been given to the purchasers in title of the respondents 8 to 21 by the Settlement Officer under Section 11 of the Act, in the year 1961.
Ever since they have been in continuous and uninterrupted possession and enjoyment of the land in dispute. There were numerous alienations for the past 54 years.
20. The learned Senior counsel for the private respondents would urge that the petitioner ought to have filed an application under Section 13 of the Act and even one more opportunity was given by issuing G.O. (Ms.)No.1300, dated 30.04.2017, enabling the appellant to apply for issuance of Patta. The submissions of the learned Senior counsel is that unless an application is filed under Sections 11 to 13 of the Act, there was no obligation for the second respondent to issue a notice to the parties.
21. The learned Senior counsel by referring to the Inam Fair Register and the Notification would argue that the land in dispute was not dedicated to the appellant Pallivasal as alleged and the appellant has no legal right to maintain the writ petition.
22.The main grievance of the appellant is that the second respondent issued patta without putting on notice to the appellant. As rightly contended by the learned counsel for the respondents that it is not mandatory under the Abolition Act to issue notice the person interested and if anyone claims of right over the property, that will be considered by the authority. Hence, we find no 21/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 force in the contention of the appellant. It is to be noted that except making bald and vague allegations that the private respondents obtained Patta in collusion with the second respondent, no materials have been brought on record to substantiate the same. Hence, in our considered opinion the allegation of fraud cannot be decided by this Court and the appellant is relegated to the competent forum for redressal of his grievance.
23. Waqf Act is a Self Contained Code. A plain reading of the above provisions would reveal that it has been stated in categorical terms how the property of Waqf is to be maintained and protected. It is evident from the decisions relied on by the respondents, as per the Scheme of the Waqf Act all the properties belong to the Waqf are to be notified under Section 5 of the Act. If any property of the Waqf has been omitted, under Section 27, necessary and required action is to be initiated by the Waqf Board to determine whether the particular property belongs to the Waqf and unless a property published under Section 5(2) or an order passed by the Waqf in exercise of the power, Waqf Board cannot file a suit.
24. This Court in 2 0 1 2 ( 4) L . W. 6 5 (supra), by referring Section 54 of the Waqf Act, confirmed the finding of the Waqf Tribunal that the Muthavalli of Rasipuram ChinnaMazjid of SunnathJamath has no right to institute suit for removal of encroachment from Waqf property and he has to approach the Waqf Board. In 2 0 1 0 ( 4) C T C 5 1 6 , it has been held that in view of Section 32(2)(1) of the Waqf Act, the present suit filed by the Muthavalli representing the plaintiff's Mosque is not 22/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 maintainable as the power to institute and defend the suit pertaining to Waqf lies with Waqf Board.
25. In the case on hand, the appellant claims right over the property on the basis that the property was dedicated to the religious institution and it is a Waqf property. The respondent would contend that the property was not notified under Section 5(2) and no order was passed under Section 27 of the Act. It is the case of the appellant that the provisions of the Waqf Act have no application and the writ petition filed by Muthavalli is maintainable. But we are not able to accept the submission of the learned counsel for the reasons that they cannot blow hot and cold in the same breath. In our considered opinion, all the provisions of Waqf Act are applicable to the case on hand and as per the decisions referred above, the appellant has no locus standi to file the writ petition and this writ appeal.
26 .In Santhoshkumar Shivagonda Patil V.Bala Saheb Thukkaram Shevale, AIR 2009 SC 2471:
2471: 2009 (9) SCC 352 and Jt.Collector, Renga Reddy District and another Vs D.Narasing Rao and others, AIF 2015 SC 1021, the Hon'ble Apex Court set aside the orders passed in exercise of the s u o motu judicial power after lapse of 17 and 13 years respectively. The same view was taken by the Supreme Court in the latest decision in Mahavir and others Vs Union of India and another, 2018 SAR (Civil) 360. The Rajastan High Court in Tara Vs.State of Rajasthan (FB) AIR 2015 Raj. 179 (Supra) has gone to the extent of holding that even if the fraud is alleged, the power must not be exercised after unreasonable period, 23/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 such as after several decades. In similar circumstances, the Division Bench of this Court in Sundaram and others Vs.Principal Secretary and Commissioner of Land Administration, 2016 (3) CTC (DB) : 2016 (2) LW 45, rejected the prayer sought for grant of Patta after six decades. In the matter on hand, indisputably the appellant challenges issuance of Patta after a lapse of 54 years.
27. The learned single Judge by following the principles laid down in the decisions of the Hon'ble Supreme Court and after analysing the relevant provisions of the Waqf Act, dismissed the writ petition. Taking note of the above facts, we find no ground to interfere with the impugned judgment. In that view, the writ appeal fails and the same is dismissed. No cots. Consequently, connected miscellaneous petitions are closed.”
45. Now, the third attempt of the third respondent to retrieve the properties from the clutches of descendants of the original patta holder who were issued patta in the year 1961/1963 by the Settlement officer and from the subsequent alienees are under challenge.
46. The writ petitioners claim themselves to be the descendants of the original ryotees who were issued with Settlement Patta under the provisions of the Abolition Act, 1948 in the year 1961 and 1963 by the Settlement Tahsildar.
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47. There have been several alienations. Some of the subsequent alienee’s have impleaded themselves as respondents. They have adopted the submissions of the writ petitioners.
48. It was submitted that in almost 60 to 70 acres out of out of 141 acres of land, there are about 800 or more alienees, who have constructed houses out of their hard earned money after purchasing the property from their predecessor, who hold a valid title to transfer the land.
49. The challenge is, on the ground that Section 40 of the Waqf Act, 1995 has been violated as statutory rights recognised under the Constitution of India are being trampled upon and denied by making an additional entry in the Waqf Register by the Waqf Board at the behest of Inspector of Waqf and at the instance of the third respondent Waqf.
50. The Inam Fair Register Deed dated 01.05.1865 by the Inam Commissioner of Tirunelveli records that an extent of 276 acres was granted in the name of the 3rd respondent Waqf.
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51. The learned senior counsel for the petitioners submits that the Waqf Act, 1995 delineates the powers of the authorities namely, the Chief Executive Officer of the Waqf Board, Waqf Tribunal and the Government and therefore submits that the Chief Executive Officer of the Waqf Board cannot arrogate upon himself the power vested with the Board to make such entries in the Waqf Register without holding enquiry contrary to Section 40 of the Waqf Act.
52. The learned Senior Counsel for the petitioners has placed reliance on the decision of this Court rendered in M.Ali Hussain Vs The Tamil Nadu Waqf Boad 2009 1 LW 753. A specific reference was made to paragraph 6, which reads as under:
''6. The Waqf Act, 1995, was enacted after a lot of deficiencies in the working of the Waqf Act, 1954 was brought to the force and the attempt made to set them right by the Amendment Act, 1984 failed on account of strong opposition. The present Act creates four power centres viz., (i) the Chief Executive Officer, (ii) the Waqf Board, (iii) the Waqf Tribunal and (iv) the Government and clearly demarcates the area of operation of these power centres. Some of the powers conferred are administrative in nature and some are quasi judicial or judicial in nature. As a consequence, some of the powers are exerciseable in original and some are appellate or 26/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 revisional. They can be presented in a tabular form as follows:-
Original powers Exerciseable by Appellate or revisional Exercisable by Dispute under Sections 6 and 7 whether a particular property specified as a Waqf property in the list of Waqfs is a Waqf property or not? Or whether it is a Shia or Sunni Waqf? The Tribunal by way of a suit instituted by the Board or Mutawalli or any person interested therein.
The decision of the Tribunal is final under Sections 6(1) and 7(1).
Removal of chairperson or member of the Board under Section 20 State Government Power to give directions for administration of Waqfs and settle schemes for the management of a Waqf, to appoint and to remove Mutawallis, to recover lost properties, etc., under Section 32 (2) The Board The scheme of management settled by the Board under clause (d) or any direction issued under clause (e) of Section 32 (2) can be challenged by way of a suit in a Tribunal under Section 33 (3).
Note:-This is by way of a suit and not by way of appeal or revision.
The Tribunal The power to take over Waqf property for undertaking development works, under Section 32 (5).
The Board An order under Section 33 (3) directing a Mutawalli or any Officer or other employee of a Waqf to make payment of any amount misappropriated, misapplied or fraudulently retained or the amount of improper expenditure incurred by him.
The Chief Executive Officer.
27/74https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 Appealable under Section 33 (4).
To the Tribunal within 30 days and upon deposit of the entire amount ordered by the CEO (the proviso to Section 33 (4) makes it clear that the Tribunal has no power to grant stay). The Tribunal's order is final under Section 33 (5). To pass conditional order of attachment of any property of a person against whom an order had been passed under Section 33 (5).
On the application of the CEO to the Tribunal under Section 35 (3).
To recover properties which have been ceased to be used for religious purpose or instruction or charity, under Section 39 (3).
On an application to the Tribunal by the Board under Section 39 (3). Power under Section 40 (1) to decide whether a particular property is a Waqf property or not or whether a Waqf is a Shia or Sunni Waqf?
By the Board under Section 40 (1).
Subject to the decision of the Tribunal under Section 40 (2).
The Tribunal.
Power under Section 48 (1) to examine the auditor's report in relation to a Waqf and to pass orders for the recovery of the amount certified by the auditor under Section 47 (2).
The Board.
Questionable under Section 48 (2) by the Mutawalli or any other person aggrieved by the order of the Board, within 30 days.
The Tribunal (whose decision is final under Section 48 (4).
Sale of Waqf properties with the sanction of the Board 28/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 under Section 51 (2).
The Board.
Questionable before the Tribunal under the second proviso to Section 51 (2).
The Tribunal.
Power of approval for the utilisation or investment of the amount realised by the sale or exchange of any Waqf property under Section 51 (3).
The Board.
Appealable to the Tribunal within 90 days under Section 51 (5).
The Tribunal.
The power under Section 52 (2) to direct a person in possession of a property transferred to him without the previous sanction of the Board.
The Collector at the request of the Board.
Appealable under Section 52 (4) within 30 days. The Tribunal.
Power under Section 54 (3) to remove encroachment from Waqf property.
The Chief Executive Officer.
A person aggrieved by the order under Section 54 (3) may institute a suit not necessarily against such order, but to establish that he has a right, title or interest in the property.
But Lessees, Licensees and Mortgagees cannot institute a suit under Section 54 (4).
The Tribunal.
29/74https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 Direction to the encroacher under Section 55 to remove the encroachment.
The Sub Divisional Magistrate on an application by the Chief Executive Officer, after an order is passed under Section 54 (3).
Power to impose fine by way of penalty under Section 61 (1) or imprisonment under Section 61 (2). Metropolitan Magistrate or Judicial Magistrate of First Class. Power to remove Mutawalli under Section 64 (1). The Board.
Appealable under Section 64 (4) within one month provided the removal is for the reasons enlisted in clauses (c) to (j) of sub section (1) of Section 64. The Tribunal.
While hearing an appeal, the Tribunal has powers to appoint a Receiver to manage the Waqf, pending a decision on the appeal.
Power to assume direct management in the Waqf under Section 65 (1). By the Board.
Revisable suo motu or on an application by a person interested in the Waqf, under Section 65 (2). The State Government.
Power to appoint and to remove Mutawalli, under special circumstances, under Section 66. The State Government.
Power to supersede the Committee of Management, under Section 67 (2). The Board. Appealable under the proviso to sub section (4) of Section 67, within 60 days. The Tribunal.
30/74https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 Power to remove a member of the Committee (instead of superceding the entire Committee) under Section 67 (6). The Board.
Appealable within 30 days under the second proviso to sub section (6) of Section 67.
The Tribunal.
Power under Section 68 (2) to order a removed Mutawalli or member to deliver possession of records, accounts and properties of the Waqf to their successors. A Magistrate of First Class. Sub section (6) of Section 68 clarifies that there is no bar for the institution of a civil suit by a person aggrieved by an order passed under this Section, to establish his right, title and interest in the properties specified in the order of the Magistrate. Power under Section 69 (1) either suo motu or on an application by not less than 5 persons to frame a scheme for the administration of a Waqf. The Board. Appealable within 60 days under the first proviso to sub section (3) of Section 69.
The Tribunal.
To hold an enquiry under Sections 70 and 71 into the administration of the Waqf.
The Board.
Assessment of the net annual income of a Waqf, under Section 72 (6) to the best of judgment of the Chief Executive Officer, for the purpose of determining the annual contribution payable to the Board. Chief Executive Officer.
Appealable within 30 days under Section 72 (7). The Board.
31/74https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 To direct under Section 73 (1), Banks or other persons with whom Waqf monies are lying, to pay the contribution leviable under Section 72, out of the monies in their custody. (like a Garnishee order) Chief Executive Officer.
Appealable by the Bank or other person, within 30 days under Section 73 (3).
The Tribunal.
Application for the determination of any dispute, question or other matter relating to the Waqf, under Section 83 (2), by any Mutawalli, person interested in a Waqf or any other person aggrieved by an order made under the Act or the Rules.
The Tribunal.
No appeal lies against a decision of the Tribunal under Section 83 (7). But the order of the Tribunal is revisable both suo motu and on an application of the Board or any person aggrieved, by virtue of the proviso to sub section (9) of Section 83.
High Court.
Power under Section 94 to direct the Mutawalli to pay an amount necessary for the performance of any act which such Mutawalli has failed to perform. The power exerciseable on an application by the Board to the Tribunal, if the obligation is of pious, religious or charitable nature.
The power is also exerciseable on an application by any person interested in the Waqf, if the failure of the Mutawalli is to discharge any other duties imposed upon him under the Waqf.
Power to supersede the Board under Section 99 (1). State Government.
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53. Apart from the above, the learned Senior Counsel for the petitioners as also the learned counsel for the newly impleaded respondents who are some of the subsequent buyers of the property have placed strong reliance on the recent decision of the Hon’ble Supreme Court in State of Andhra Pradesh Vs A.P. State Waqf Board and others, 2022 Livelaw (SC) 136 The relevant portion from the aforesaid order reads as under:
“145. Thus, we find that the power of the Board to investigate and determine the nature and extent of Waqf is not purely an administrative function. Such power has to be read along with Section 40 of the Act which enjoins a Waqf Board to collect information regarding any property which it has reason to believe to be Waqf property and to decide the question about the nature of the property after making such inquiry as it may deem fit. The power to determine under Section 32(2)(n) is the source of power but the manner of exercising that power is contemplated under Section 40 of the 1995 Act. An inquiry is required to be conducted if a Board on the basis of information collected finds that the property in question is a Waqf property. An order passed thereon is subject to appeal before the Waqf Tribunal, after an inquiry required is conducted in terms of sub- section (1) of Section 40. Therefore, there cannot be any unilateral decision without recording any reason that how and why the property is included as a Waqf property. The finding of the Waqf Board is final, subject to the right of appeal under sub-section (2). Thus, any decision of the 33/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 Board is required to be as a reasoned order which could be tested in appeal before the Waqf Tribunal.
146. Therefore, the Waqf Board has power to determine the nature of the property as Waqf under Section 32(2)(n) but after complying with the procedure prescribed as contained in Section 40.
Such procedure categorically prescribes an inquiry to be conducted. The conduct of inquiry pre-supposes compliance of the principles of natural justice so as to give opportunity of hearing to the affected parties. The proceedings produced by the Waqf Board do not show any inquiry conducted or any notice issued to either of the affected parties. Primarily, two factors had led the Waqf Board to issue the Errata notification, that is, order of the Nazim Atiyat and the second survey report. Both may be considered as material available with the Waqf Board but in the absence of an inquiry conducted, it cannot be said to be in accordance with the procedure prescribed under Section 40 of the 1995 Act.
147. Since there is no determination of the fact whether the property in question is a Waqf property after conducting an inquiry in terms of Section 40(1) of the 1995 Act, the Errata notification cannot be deemed to be issued in terms of Section 32 read with Section 40 of the 1995 Act. Such determination alone could have conferred right on the affected parties to avail the remedy of appeal under Section 40 of the 1995 Act.”
54. It is therefore submitted that the unilateral decision to include the property as a Waqf property which were excluded from the Waqf Register 34/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 cannot be included without notice to the parties, who are likely to be affected by such inclusion.
55. The learned Senior Counsel for the petitioners further submits that there about 800 alienees, are in possession of the land measuring an extent of 1 cent to 3 cents or more and have settled long back.
56. It is submitted that the exercise undertaken by the Waqf Board through its CEO is therefore liable to be quashed. The learned senior counsel for the petitioners submits that once the property has been taken over under the provisions of the Tamil Nadu Estate (Abolition and Conversion into Ryotwari), Act 1948, the rights of the third respondent Waqf stood extinguished and therefore it is not open for the Waqf Board or Waqf to exercise rights over the same.
57. It is submitted that the arguments of the respondents that once the Waqf property is always a Waqf property cannot be applied due to the intervening, event after taking over of the land under the provisions of the Tamil Nadu Estate (Abolition and Conversion into Ryotwari), Act 1948 and 35/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 with the issue of settlement patta in the year 1961 in favour of the petitioners and their predecessors.
58. In this connection, the learned senior counsel for the petitioners has drawn attention to the following cases.
i. Masuda Begum v/s Roushan Ali AIR 2019 CALCUTTA 275;
ii. AhaleSunnathwalJamath Jogi Madam Majid and Durga v/s Haji Syed Irfan Hussain Sahib 2010(2)MWN(CIVIL)655;
iii. TamilNadu Waqf Board v/s Hajitha Ammal (Dead) by Lrs2002(1) CTC 561;
iv. Karnataka Board of Waqf v/s Government of India and Ors2004 SAR(CIVIL)535;
v. Hazarath Khaja Syed Sulthan v/s M.V.P Gunavel;
vi. Union ofIndia v/s Banwarilal& Sons 2004 SAR(CIVIL)540;
vii.M.Ali Hussain vs Thetamil Nadu Waqf Board& another 2009-1 L.W.753;
viii.O.M.S Shaik udumanAalim Sahib Vs The tamilNadu Waqf Board & others 2004-4-L.W. 274;
ix. SenniammalaiGounder and 12 others vs Add.District Magistrate and Divisional Revenue Officer 2019(4)CTC 341;
36/74https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 x. Embassy Property Development Pvt Ltd vs State of Karnataka 2020(1)CTC 853;
xi. Madanuri Sri ramam Chandra Murthy vs Syed Jamal AIR 2017 SC 2653.
59. The learned Senior Counsel for the petitioners also submitted that having suffered adverse orders before the Trial Court and after having with drawn the Civil Revision Petition and having suffered orders in Writ petition and writ appeal, it is not open for the Waqf board or the third respondent to restart the case.
60. The learned Counsel for the petitioner further added that the rights under Article 300-A of the Constitution of India under cannot be disturbed and diluted therefore, the impugned proceedings have also to go. That apart, it is submitted that the attempt of the Waqf board is contrary to Section 40 of the Act inasmuch as enquiry as is contemplated has not been conducted.
61. The learned senior counsel for the petitioners also drew attention to the decision of the Hon’ble Supreme Court in Shri Lokraj and others. Vs. Kishan Lal and others, reported in1995 3 SCC 291. A specific reference was made to paragraph 3 and 4, which reads as under:
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3. Therefore, notwithstanding any contra usage, settlements etc. enumerates s.3(1), on and from the date of the Act the inams were abolished and inam lands stood vested in the State. Section. 3 expressly saves certain properties from the vesting as enumerated in clauses (a) to (i) of the sub-s.(2) thereof, with which we are not presently concerned.
Section 4 gives right to registration by the Inamdar as occupant. As per this Section, every inamdar shall, with effect from the date of vesting, be entitled to be registered as an occupant of all inam lands other than the lands enumerated in clauses (a) to (c) therein. Sec- tions 6 to 8 deal with registration of permanent tenants as occupants, either protected tenants or non-protected tenants etc. Section 5 deals with registration of Kabize-kadim tenants as occupant. Section 9 deals with vesting of certain buildings and inam lands used for non-agricultural purposes. Section 10 creates forum for determination of the entitlements in ss.4 to 9. Section 11 saves certain rights ereated under the Act before the date of vesting as Inamdars. Section 23 deals with constitution of Special Tribunals and their power to deal with the questions arose therein. Section 24 gives right of appeal against the order passed by the authorities constituted under s.10 to determine the questions enumerated in ss.4 to
9. Thus the Act is a complete Code, abolished the Inam, vested the land in the government and conferred rights on the persons in oc-
cupation enumerated, subject to the right of appeal and the decision thereon. The Act abolished existing rights and created new rights. Created forum to determine the rights 38/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 and liabilities arising therefrom. The question, therefore, is whether the civil suit for partition is maintainable, after the estate was abolished.
4. Consequent to the abolition, the pre-existing right, title and interest of the Inamdar or any person having occupation of the Inam lands stood divested and vest the same in the State until regrant is made. The inamdar, thereby lost the pre-existing right, title and interest in the land. The right to partition itself also has been lost by the statutory operation unless regrant is made. We are not concerned with the consequences that would ensue after regrant of this appeal. Therefore, it is not necessary for us to go into the question that may arise after the regrant.”
62. Mr.J.Barathan, learned counsel for some of the private parties, who got impleaded themselves have reiterated the above and submission and submitted that there is a presumption under Section 3 of the Transfer of Property Act, 1882.
63. It is submitted that it was incumbent on the part of the Waqf Board to issue a notice by conducting an enquiry under Section 40 of the Act. It is further submitted that the subsequent alienees are exercising their rights independently based on the sale deeds executed from 1982 and that these 39/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 respondents and also other persons are in continuous possession of the property from the time when they purchased the property. It is therefore submitted that the impugned proceedings are liable to be interfered.
64. Mr.Raghavachari, learned counsel for the respondents 11 to 15 submits that the issue was now squarely covered by the Hon’ble Supreme Court as the powers exercised under Section 40 and that any adverse decision taken without due notice calls for an interference. The learned counsel once again referred to Paragraph 145, 146 and 147 from the aforesaid judgment in State of Andhra Pradesh Vs A.P. State Waqf Board and others, 2022 Livelaw (SC) 136, which has been extracted above.
65. Opposing the prayer, the learned counsel for the Waqf board submits that it stands concluded that the property indeed was that of Waqf property as per the Inam Fair Register of 1865. It is further submitted that there is an embargo under Section 22 A of the Registration Act, which prohibits the registration of any property which belongs to a Religious Institution.
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66. That apart, it is submitted that the submission of the learned senior counsel for the petitioners that once a Waqf property always a Waqf property is of no relevance in the light of Section 107 of the Waqf Act. It is submitted that the Limitation Act does not apply and therefore, the Waqf can recover the property at any point of time without any reference to any limitation. It is submitted that Waqf board has unbridled power under the Act to include properties in the Registrar, where the properties were not included in the Waqf Register earlier under Section 40 of the Act.
67. The second respondent Waqf defends its action and states that it has merely included the property in the Waqf Register which was not included earlier. The third respondent supports the stand of the second respondent.
68. As mentioned above, the dispute over the property was brewing right from the beginning of the last century. After the Tamil Nadu Estates (Abolition and Conversion Into Ryotwari) Act, 1948 came into force with effect from 19.04.1949, an attempt was made by the petitioners’ predecessors to get ryotwari patta from the Settlement Officer after the said 41/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 Karuvelangulam Village in Tirunelveli District was notified under Section 1(4) of the Tamil Nadu Estates (Abolition and Conversion Into Ryotwari) Act, 1948 vide G.O.No.2302, Revenue, dated 01.09.1951 at Sl.No.68 in Tirunelveli Taluk in Tirunelveli District.
69. The entire extent of 141.83 Acres was also notified as a waqf property in Gazette Notification dated 13.05.1954 published in the Fort St.George Gazette. The total extent of land includes water body and forms part of the Inam Fair Register dated 01.05.1865, content of which has been partly extracted.
70. There was a dispute regarding the payment of Tasdik Allowances at the behest of one Mr.Shah Ali Abbaskhan who claimed himself to be the legal descendent of Mr.Etbarkhan who was said to be rendering defence service to the Nawab of Walajah, the Carnatic Ruler. The Inam estates of Thulukkarkulam and Karuvelangulam in Tirunelveli District were allegedly granted by Nawab of Walajah, the Carnatic Ruler.
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71. The settlement patta for 171.84 Acres were given in the year 1961, through whom, the petitioners claim their lineage and to few others, to in the year 1963 for 7.43 acres were given.
72. The Descriptive Memoir of Karuvelangulam Village dated 21.09.1961 which indicates that there were about 12 agriculturists belonging to the same family. G.O.No.2302, Revenue, dated 01.09.1951 issued under Section 1(4) of the Tamil Nadu Estates (Abolition and Conversion Into Ryotwari) Act, 1948 reads as under:-
TAKING OVER OF CERTAIN INAM ESTATES UNDER MADRAS ESTATES (ABOLITION AND CONVERSION INTO RYOTWARI) ACT.
(G.O.No.2302, Revenue, 1st September 1951) No.280.
In exercise of the powers conferred by section 1(4) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948), His Excellency the Governor of Madras hereby appoints the 1st day of October 1951 as the date on which the provisions of the said Act other than sections 1, 2, 4, 5, 7, 8, 9, 62,67 and 68 which have already come into force, shall come into force in the inam estates specified in the schedule below:-43/74
https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 SCHEDULE Name of the Taluk Serial number and name of the inam estate A MADRAS DISTRICT …… …............
TIR TIRUNELVELI DISTRICT Tirunelveli 64 ................ Tiru 64………............
Kkk La 68. Karuvelangulam
73. The Abolition Act applies to all to all “estates” as defined in Section 3(2) of the Tamil Nadu Estates Land Act, 1908 (Tamil Nadu Act I of 1908) sas is evident from a reading of Section 1(3) of the Tamil Nadu Estates (Abolition and Conversion Into Ryotwari) Act, 1948 which reads as under:-
1. Short title, extent, application and commencement.-
(1) This Act may be called the [Tamil Nadu] Estates (Abolition and Conversion into Ryotwari) Act, 1948.
(2) It extends to the whole of the [State of Tamil Nadu], except the Presidency-town of Madras as it stood on the 1st day of July 1908, [xxx] and the portion of the 44/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 Nilgiri district known as the South-East Wynaad.
(3) It applies to all estates as defined in section 3, clause (2), of the [Tamil Nadu] Estates Land Act, 1908 ([Tamil Nadu] Act I of 1908), except inam villages which became estates by virtue of the Tamil Nadu Estates Land (Third Amendment) Act, 1936 (Tamil Nadu Act XVIII of 1936).
74. Abolition Act does not apply to“ inam villages” which became estates by virtue of the Tamil Nadu Estates Land (Third Amendment) Act, 1936 (Tamil Nadu Act XVIII of 1936).
75. The expression ‘estate’ has been defined in Section 2(3) of the Abolition Act. As per Section 2(3) of the Abolition Act, 1948 “estate” means a “zamindari estate” or an “under tenure estate ” or an “inam estate”.
76 Section 3(2) of the Tamil Nadu Estates Land Act, 1908 defines the expression reads as under:-
3. Definitions. - In this Act, unless there is something repugnant in the subject or context – (1) …………..
(2)"Estate" means – 45/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021
(a) any permanently settled estate or temporarily settled zamindari;
(b) any portion of such permanently-settled estate or temporarily-settled zamindari which is separately registered in the office of the Collector;
(c) any unsettled palaiyam or jagir.
(d) any inam village of which the grant has been made, confirmed or recognized by the [***] Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees.
Explanation (1). - Where a grant as an inam is expressed to be of a named village, the area which forms the subject-matter of the grant shall be deemed to be an estate notwithstanding that it did not include certain lands in the village of that name which have already been granted on service or other tenure or been reserved for communal purposes.
Explanation (2). - Where an inam village is resumed by the Government, it shall cease to be an estate; but, if any village so resumed is subsequently regranted by the Government as an inam, it shall from the date of such re-grant, be regarded as an estate.
Explanation (3). - Where a portion of an inam village is resumed by the Government, such portion shall cease to be part of the estate, but the rest of the village shall be deemed to be an inam village for the purposes of this sub-clause. If the portion so resumed or any part thereof is subsequently regranted by the Government as an inam, such portion or part shall, from the date of 46/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 such re-grant, be regarded as forming part of the inam village for the purposes of this sub-clause;
(e) any portion consisting of one or more villages of any of the estates specified above in clauses (a), (b) and (c) which is held on a permanent under-tenure.
77. The expression ‘inam estate’ which is used in Section 2(7) of the Abolition Act, 1948 incorporates the definition from the Estates Land Act.
78. Section 2(7) of the Abolition Act, 1948 reads as under:-
“2(7) "inam estate" means an estate within the meaning of section 3, clause (2) (d), of the Estates Land Act, but does not include an inam village which became an estate by virtue of the Tamil Nadu Estates Land (Third Amendment) Act, 1936 (Tamil Nadu Act XVIII of 1936)”
79. Section 2(7) of the Abolition Act, 1948 clearly excludes the ”Inam Village” which became an estate by virtue of the Tamil Nadu Estates Land (Third Amendment) Act, 1936 (Tamil Nadu Act XVIII of 1936).
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80. Section 3(2)(d) of the Tamil Nadu Estates Land Act, 1908 was substituted by the Tamil Nadu Estates Land (Third Amendment) Act, 1936 (Tamil Nadu Act XVIII of 1936).
81. As per Section 3(2)(d) of the aforesaid Act, any inam village of which the grant has been made, confirmed or recognized by the Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in the title of the grantee or grantees.
82. Sub clause (d) to Section 3(2) of the Tamil Nadu Estates Land Act, 1908 was inserted by original sub-clause (d) by Section 2(i) of the Madras Estate Land (Third Amendment) Act,1936 (Madras Act XVIII of 1936).
Thus, only“estates” as defined in Section 3(2) of the Tamil Nadu Estates Land Act, 1908 could be notified under the Abolition Act. Inam villages which became estates by virtue of the Tamil Nadu Estates Land (Third Amendment) Act, 1936 are outside the purview of the Abolition Act, 1948.
83. As per Section 2(10) of the Abolition Act, 1948, "notified date" in relation to an estate, means the date appointed by a Notification issued under 48/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 Section 1(4) of the Act, as the date on which the provisions of this Act (other than Sections 1, 2, 4, 5, 7, 8, 58-A, 62, 67 and 68) shall come into force in the estate or where the operation of any such notification has been stayed or interrupted by order of Court, the date from which the Government have been in uninterrupted possession of the estate and the word "notified" shall be construed accordingly.
84. Section 3 of the Tamil Nadu Estates (Abolition and Conversion Into Ryotwari) Act, 1948 deals with consequences of Notification of estate which reads as under:-
3. Consequences of notification of estate. - With effect on and from the notified date and save as otherwise expressly provided in this Act -
(a) the Tamil Nadu Estates Land (Reduction of Rent) Act, 1947 (Tamil Nadu Act XXX of 1947) [in so far as it relates]to matters other than the reduction of rents and the collection of arrears of rent and the Tamil Nadu Permanent Settlement Regulation, 1802 (Tamil Nadu Regulation XXV of 1802), the [Tamil Nadu] Estates Land Act, 1908 (Tamil Nadu Act I of 1908), and all other enactment applicable to the estate as such shall be deemed to have been repealed in their application to the estate.
(b) the entire estate (including all communal 49/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 lands; porambokes; other non-ryoti lands;
waste lands; pasture lands; lanka lands;
forests; mines and minerals'; quarries; rivers and streams; Substituted and were deemed always to have been [tanks and ooranies (including private tanks and ooranies) and irrigation works]; fisheries and ferries), shall stand transferred to the Government and vest in them, free of all encumbrances and the Tamil Nadu Revenue Recovery Act, 1864 (Tamil Nadu Act II of 1864), the Tamil Nadu Irrigation Cess Act, 1865 (Tamil Nadu Act VII of 1865), and all other enactments applicable to ryotwari areas shall apply to the estate;
(c) all rights and interests created in or over the estate before the notified date by the principal or any other landholder, shall as against the Government cease and determine;
(d) the Government may, after removing any obstruction that may be offered, forthwith take possession of the estate, and all accounts, registers, pattas, muchilikas, maps, plans and other documents relating to the estate which the Government may require for the administration thereof:
Provided that the Government shall not dispossess any person of any land in the estate in respect of which they consider that he is prima facie entitled to a ryotwari patta-
(i) if such person is a ryot, pending the decision of the Settlement Officer as to whether he is actually entitled to such patta;50/74
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(ii) if such person is a landholder, pending the decision of the Settlement Officer and the Tribunal on appeal, if any, to it as to whether he is actually entitled to such patta;
(e) the principal or any other landholder and any other person, whose rights stand transferred under clause (b) or cease and . determine under clause (c), shall be entitled only to such rights and privileges as are recognized or conferred on him by or under this Act;
(f) the relationship of landholder and ryot, shall, as between them, be extinguished;
(g) any rights and privileges which may have accrued in the estate, to any person before the notified date, against the principal or any other landholder thereof, shall cease and determine, and shall not be enforceable against the Government or such landholder, and every such person shall be entitled only to such rights and privileges as are recognized or conferred on him by or under this Act.
85. As per Section 11 of the Abolition Act, 1948, every ryot in an estate, with effect on and from the notified date, is entitled to a ryotwari patta in respect of,
(a) all ryoti lands which, immediately before the notified date, were properly included or ought to have been properly included in his holding and which are not either lanka lands or lands in 51/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 respect of which a landholder or some other person is entitled to a ryotwari patta under any other provision of this Act; and
(b) all lanka lands in his occupation immediately before the notified date, such lands having been in his occupation or in that of his predecessors-in- title continuously from the 1st day of July 1939
86. Explanation further states that no lessee of any lanka land and no person to whom a right to collect the rent of any land has been leased before the notified date, including an ijaradar or a farmer of rent, shall be entitled to a ryotwari patta in respect of such land under the Section.
87. It is evident that the Karuvelankulam Village being a Inam Village as confirmed by the Trial Court in Judgment and Decree dated Judgment and Decree dated 07.11.1972 in O.S.No.31 of 1971, could not have possibly included the same within the purview of Abolition Act, 1948.
88. Proviso to Section 11 of the Tamil Nadu Estates (Abolition and Conversion Into Ryotwari) Act, 1948 reads as under:-
Provided that no person who has been admitted into possession of any land by a landholder on or after the 1st day of July 1945 shall, except where the Government, 52/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 after an examination of all the circumstances otherwise direct, be entitled to a ryotwari patta in respect of such land.
89. G.O.No.2302, Revenue, dated 01.09.1951 could not have thus included land in Karuvelankulam Village for the purpose of Abolition Act, 1948.Thus, grant of Tasdik Allowances to the third respondent under Section 38 of the Tamil Nadu Estates (Abolition and Conversion Into Ryotwari) Act, 1948 appears to be contrary to the provision of the Tamil Nadu Estates (Abolition and Conversion Into Ryotwari) Act, 1948.
90. The settlement pattas granted in favour of the petitioners’ predecessor in year 1961 and in favour of the five others in the year 1963 as has been shown in the Settlement Registers dated 21.09.1961 and 19.01.1963 also appears to have been issued without any authority of law.
91. On the strength of the settlement patta which appeared to have been issued in favour of the petitioners’ predecessors, several alienations have been made in favour of the petitioners including the private respondents who have been impleaded in these Writ Petitions. At the same time, as per Section 64C of the Abolition Act(The Tamil Nadu Estate (Abolition and 53/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 Conversion into Ryotwari) Act, 1948) Any order passed by the Government or[ other authority under this Act] in respect of matters to be determined for the purpose of this act shall, subject only to any appeal or revision provided byor under this Act, be final .Such orders cannot be questioned in any court of law. Sec 64C of the Abolition Act i.e (The Tamil Nadu Estate (Abolition and Conversion into Ryotwari) Act, 1948) reads as under;
64C- Finality of Orders passed (****) under this Act – (1)Any order passed by the Government or[ other authority under this Act] in respect of matters to be determined for the purpose of this act shall, subject only to any appeal or revision provided byor under this Act, be final (2) No such orders shall be liable to be questioned in any Court of Law.
92. As per the decision of the Hon’ble Supreme Court in State of Andhra Pradesh Vs A.P. State Waqf Board and others, 2022 SCC OnLine SC 159, the Waqf Board has power to determine the nature of the property as Waqf under Section 32(2)(n) but after complying with the procedure prescribed as contained in Section 40. Such procedure categorically prescribes an inquiry to be conducted. The conduct of inquiry pre-supposes compliance with the principles of natural justice. An opportunity of hearing 54/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 is to be given to affected parties who are likely to be affected. The proceedings produced by the Waqf Board do not show any prior inquiry conducted or any prior notice issued to the parties who are likely to be affected by such enquiry. Primarily, two factors which led the Waqf Board to issue the Errata notification, that is, order of the Nazim Atiyat and the second Survey Report. Both may be considered as material available with the Waqf Board but in the absence of a prior inquiry, it cannot be said to be in accordance with the procedure prescribed under Section 40 of the Waqf Act, 1995.Though, there is no determination as to where 141.83 acres of land was for property in question.
93. Since there is no dispute that the land in question was dedicated to the Waqf, and was also notified in 1954 Gazette rights of the 3 rd respondent cannot be put to the back-burner. All the same, notice should have been issued to all the persons who are in possession or have purchased the property, before making entry into the Waqf Register, even though mere entry in the Waqf Register ipso facto will not mean that a person can be evicted straight away. Eviction can be only after following due process of law.
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94. That apart, as per Section 51 of Waqf Act, 1995, formerly 66G of Wakf Act, 1954 all alienations of Waqf property is null and void and therefore, there is no merits in the present Writ Petitions. Under these circumstances, the Writ Petitions are liable to be dismissed and is accordingly dismissed.
95. The Descriptive Memoir of Karuvelangulam Village dated 21.09.1961 which indicates that there were about 12 agriculturists belonging to the same family. G.O.No.2302, Revenue, dated 01.09.1951 issued under Section 1(4) of the Abolition Act, 1948 reads as under:-
''TAKING OVER OF CERTAIN INAM ESTATES UNDER MADRAS ESTATES (ABOLITION AND CONVERSION INTO RYOTWARI) ACT.
(G.O.No.2302, Revenue, 1st September 1951) No.280.
In exercise of the powers conferred by section 1(4) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948), His Excellency the Governor of Madras hereby appoints the 1st day of October 1951 as the date on which the provisions of the said Act other than sections 1, 2, 4, 5, 7, 8, 9, 62,67 and 68 which have already come into force, shall come into force in the inam estates specified in the 56/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 schedule below:-
SCHEDULE Name of the Taluk Serial number and name of the InamEstate A M MADRAS DISTRICT …… …............
TIR TIRUNELVELI DISTRICT
Tirunelveli 64 ................
Tiru 64………............
…
Kkk La 68. Karuvelangulam''
96. Abolition Act, 1948 applies to all to all “estates” as defined in Section 3(2) of the Tamil Nadu Estates Land Act, 1908 (Tamil Nadu Act I of 1908) as is evident from a reading of Section 1(3) of the said Act, which reads as under:-
''1. Short title, extent, application and commencement.-
(1) This Act may be called the [Tamil Nadu] Estates (Abolition and Conversion into Ryotwari) Act, 1948.
(2) It extends to the whole of the [State of Tamil Nadu], except the Presidency-town of Madras as it 57/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 stood on the 1st day of July 1908, [xxx] and the portion of the Nilgiri district known as the South-
East Wynaad.
(3) It applies to all estates as defined in section 3, clause (2), of the [Tamil Nadu] Estates Land Act, 1908 ([Tamil Nadu] Act I of 1908), except inam villages which became estates by virtue of the Tamil Nadu Estates Land (Third Amendment) Act, 1936 (Tamil Nadu Act XVIII of 1936).''
97. The expression ‘estate’ has been defined in Section 2(3) of the Abolition Act,1948. As per Section 2(3) of the Abolition Act, 1948 “estate” means a “zamindariestate” or an “under tenure estate ” or an “inam estate”. Section 3(2) of the Tamil Nadu Estates Land Act, 1908 defines the expression reads as under:-
''3. Definitions. -In this Act, unless there is something repugnant in the subject or context – (1) …………..
(2)"Estate" means –
(a) any permanently settled estate or temporarily settled zamindari;
(b) any portion of such permanently-settled estate or temporarily-settled zamindari which is separately registered in the office of the Collector;58/74
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(c) any unsettled palaiyam or jagir.
(d) any inam village of which the grant has been made, confirmed or recognized by the [***] Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees.
Explanation (1). - Where a grant as an inam is expressed to be of a named village, the area which forms the subject-matter of the grant shall be deemed to be an estate notwithstanding that it did not include certain lands in the village of that name which have already been granted on service or other tenure or been reserved for communal purposes.
Explanation (2). - Where an inam village is resumed by the Government, it shall cease to be an estate; but, if any village so resumed is subsequently regranted by the Government as an inam, it shall from the date of such re- grant, be regarded as an estate.
Explanation (3). - Where a portion of an inam village is resumed by the Government, such portion shall cease to be part of the estate, but the rest of the village shall be deemed to be an inam village for the purposes of this sub-clause. If the portion so resumed or any part thereof is subsequently regranted by the Government as an inam, such portion or part shall, from the date of such re-grant, be regarded as forming part of the inam village for the purposes of this sub-clause;
(e) any portion consisting of one or more villages of any of the estates specified above in clauses (a), (b) and (c) which is held on a permanent under-tenure.'' 59/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021
98. The expression ‘inam estate’ which is used in Section 2(7) of the Abolition Act, 1948 incorporates the definition from theTamil Nadu Estates Land Act, 1908.Section 2(7) of the Abolition Act, 1948 reads as under:-
2(7) "inam estate" means an estate within the meaning of section 3, clause (2) (d), of the Estates Land Act, but does not include an inam village which became an estate by virtue of the Tamil Nadu Estates Land (Third Amendment) Act, 1936 (Tamil Nadu Act XVIII of 1936)''
99. Section 2(7) of the Abolition Act, 1948 clearly excludes the ”Inam Village” which became an estate by virtue of the Tamil Nadu Estates Land (Third Amendment) Act, 1936 (Tamil Nadu Act XVIII of 1936).
100. Section 3(2)(d) of the Tamil Nadu Estates Land Act, 1908 was substituted by the Tamil Nadu Estates Land (Third Amendment) Act, 1936 (Tamil Nadu Act XVIII of 1936).
101. As per Section 3(2)(d) of the aforesaid Act, any inam village of which the grant has been made, confirmed or recognized by the Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in the title of the grantee or grantees is 60/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 an estate. However, it become an estate only in view of the Tamil Nadu Estates Land (Third Amendment) Act, 1936 (Tamil Nadu Act XVIII of 1936).
102. It is evident that he Trial Court vide its Judgment and Decree dated Decree dated 07.11.1972O.S.No.31 of 1971 has also confirmed that the land in the Karuvelankulam Village was an Inam Village. The Inam Fair Register also confirms the same. Therefore, it could not have possibly be included within the purview of Abolition Act, 1948 for issue of ryotwari patta.
103. Thus, Abolition Act,1948 does not apply to“ inam villages” which became estates by virtue of the Tamil Nadu Estates Land (Third Amendment) Act, 1936 (Tamil Nadu Act XVIII of 1936). The Descriptive Memoir clearly bring out the fact that the lands in Karuvelangulam Village.
104. G.O.No.2302, Revenue, dated 01.09.1951 could not have thus included land in Karuvelankulam Village for the purpose of Abolition Act, 1948.Thus, grant of Tasdik Allowances to the third respondent under Section 61/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 38 of the Tamil Nadu Estates (Abolition and Conversion Into Ryotwari) Act, 1948 appears to be contrary to the provision of the Tamil Nadu Estates (Abolition and Conversion Into Ryotwari) Act, 1948.
105. Thus, the settlementpattas granted in favour of the petitioners’ predecessor in year 1961 and in favour of the five others in the year 1963 as has been shown in the Settlement Registers dated 21.09.1961 and 19.01.1963 appears to have been issued prima facie without any authority of law.
However, it would require a proper enquiry at appropriate stage.
106. Further, the extent of land for which pattas were givenas has been shown in the Settlement Registers dated 21.09.1961 and 19.01. 1963 prima facie appears to be in excess of the land that could have been retained by the predecessors of the petitioner’s under provisions of the Madras Land Reforms (Fixation of Ceiling on Land) Act (Act 58 of 1961.
107. In Navneetheswaraswami Devasthanam v. State of Madras, (1975) 1 SCC 403, the Hon’ble Supreme Court referred to the ceiling limit applicable to the to religious institution under Section 2 of the Madras Land 62/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 Reforms (Fixation of Ceiling on Land) Act (Act 58 of 1961) as per which “Subject to the provisions of Section 6, nothing contained in this Act shall apply to lands held by religious trusts of a public nature.” This aspect would require a detailed probe.
108. As per Section 2(10) of the Abolition Act, 1948, "notified date" in relation to an estate, means the date appointed by a Notification issued under Section 1(4) of the Act, as the date on which the provisions of this Act (other than Sections 1, 2, 4, 5, 7, 8, 58-A, 62, 67 and 68) shall come into force in the estate or where the operation of any such notification has been stayed or interrupted by order of Court, the date from which the Government have been in uninterrupted possession of the estate and the word "notified" shall be construed accordingly.
109. Section 3 of the Tamil Nadu Estates (Abolition and Conversion Into Ryotwari) Act, 1948 deals with consequences of Notification of estate which reads as under:-
''3. Consequences of notification of estate. - With effect on and from the notified date and save as otherwise expressly provided in this Act -63/74
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(a) the Tamil Nadu Estates Land (Reduction of Rent) Act, 1947 (Tamil Nadu Act XXX of 1947) [in so far as it relates]to matters other than the reduction of rents and the collection of arrears of rent and the Tamil Nadu Permanent Settlement Regulation, 1802 (Tamil Nadu Regulation XXV of 1802), the [Tamil Nadu] Estates Land Act, 1908 (Tamil Nadu Act I of 1908), and all other enactment applicable to the estate as such shall be deemed to have been repealed in their application to the estate;
(b) the entire estate (including all communal lands;
porambokes; other non-ryoti lands; waste lands; pasture lands; lanka lands; forests; mines and minerals'; quarries; rivers and streams; Substituted and were deemed always to have been [tanks and ooranies (including private tanks and ooranies) and irrigation works]; fisheries and ferries), shall stand transferred to the Government and vest in them, free of all encumbrances and the Tamil Nadu Revenue Recovery Act, 1864 (Tamil Nadu Act II of 1864), the Tamil Nadu Irrigation Cess Act, 1865 (Tamil Nadu Act VII of 1865), and all other enactments applicable to ryotwari areas shall apply to the estate;
(c) all rights and interests created in or over the estate before the notified date by the principal or any other landholder, shall as against the Government cease and determine;
(d) the Government may, after removing any obstruction that may be offered, forthwith take possession of the estate, and all accounts, registers, pattas, muchilikas, maps, plans and other documents relating to the estate which the 64/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 Government may require for the administration thereof:
Provided that the Government shall not dispossess any person of any land in the estate in respect of which they consider that he is prima facie entitled to a ryotwari patta-
i. if such person is a ryot, pending the decision of the Settlement Officer as to whether he is actually entitled to such patta;
ii. if such person is a landholder, pending the decision of the Settlement Officer and the Tribunal on appeal, if any, to it as to whether he is actually entitled to such patta;
(e) the principal or any other landholder and any other person, whose rights stand transferred under clause (b) or cease and . determine under clause
(c), shall be entitled only to such rights and privileges as are recognized or conferred on him by or under this Act;
(f) the relationship of landholder and ryot, shall, as between them, be extinguished;
(g) any rights and privileges which may have accrued in the estate, to any person before the notified date, against the principal or any other landholder thereof, shall cease and determine, and shall not be enforceable against the Government or such landholder, and every such person shall be entitled only to such rights and privileges as are recognized or conferred on him by or under this Act.'' 65/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021
110. As per Section 11 of the Abolition Act, 1948, every ryot in an estate, with effect on and from the notified date, is entitled to a ryotwari patta in respect of '' (a) all ryoti lands which, immediately before the notified date, were properly included or ought to have been properly included in his holding and which are not either lanka lands or lands in respect of which a landholder or some other person is entitled to a ryotwari patta under any other provision of this Act;
(b) all lanka lands in his occupation immediately before the notified date, such lands having been in his occupation or in that of his predecessors-in-title continuously from the 1st day of July 1939:
Provided that no person who has been admitted into possession of any land by a landholder on or after the 1st day of July 1945 shall, except where the Government, after an examination of all the circumstances otherwise direct, be entitled to a ryotwari patta in respect of such land.
Explanation. - No lessee of any lanka land and no person to whom a right to collect the rent of any land has been leased before the notified date, including an ijaradar or a farmer of rent, shall be entitled to a ryotwari patta in respect of such land under this section.''
111. The above explanation also makes it clear that that no lessee of any lanka land and no person to whom a right to collect the rent of any land 66/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 has been leased before the notified date, including an ijaradar or a farmer of rent, shall be entitled to a ryotwari patta in respect of such land under the Section. However, the petitioners predecessors appear to have been given ryotwari patta for such lands also.
112. By amendment to Waqf Act, 1954 vide Amending Act 69 of 1984, Section 66G was inserted. As per the said provision,.
“Notwithstanding anything contained in the Limitation Act, 1963, the period of limitation for any suit for possession of immovable property comprised in any wakf or possession of any interest in such property shall be a period of thirty years and such period shall begin to run when the possession of the defendant becomes adverse to the plaintiff”. Section 66G of the Waqf Act, 1954 reads as under:-
''66G. Notwithstanding anything contained in the Limitation Act, 1963, the period of limitation for any suit for possession of immovable property comprised in any wakf or possession of any interest in such property shall be a period of thirty years and such period shall begin to run when the possession of the defendant becomes adverse to the plaintiff.'' 67/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021
113. As per the above Section 66G of the Waqf Act, 1954 period of limitation prescribed is 30 years to file a suit for recovering the possession of any interest in any immovable property. The period of limitation is to be computed from the date when the possession of the defendant became adverse to the plaintiff.
114. The Hon'ble Supreme Court in Wakf Board, A.P Vs. Biradavolu Ramana Reddy, AIR 1999 SC 3374, held that as Sections 66D to 66H were brought the statute of Wakf Act, 1954 by Amending Act 69 of 1984 and since the suit was filed in 1973, the said provisions was not available to the appellant for getting the extension of period of limitation.
115. As per Section 107 of the Waqf Act, 1995, the period of limitation prescribed in the Wakf Act is not applicable to Wakf Property.Further, as per Section 104-A of the Waqf Act, 1995, any sale of waqf property is void ab initio under Section 104-A of the Waqf Act, 1995. Section 104-A of the Waqf Act, 1995 reads as under:-
''104-A. Prohibition of sale, gift, exchange, mortgage or transfer of waqf property.— (1) Notwithstanding anything contained in this Act or any other law for the time being in force or any waqf 68/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 deed, no person shall sell, gift, exchange, mortgage or transfer any movable or immovable property which is a waqf property to any other person.
(2) Any sale, gift, exchange, mortgage or transfer of property referred to in subsection (1) shall be void ab initio. ''
116. That apart, as per Section 51 of Waqf Act, 1955, all alienations of Waqf property is null and void.
117. However, on the strength of the settlement pattas which appear to have been issued in favour of the petitioners’ predecessors, several alienations have been made by the petitioners to several person including the private respondents who have been impleaded in these Writ Petitions.
118. Under Section 64-C of the Abolition Act, any order passed by the Government or [other authority under this Act] in respect of matters to be determined for the purpose of this act shall, subject only to any appeal or revision provided by or under this Act are final. Such orders cannot be questioned in any Court of law. Sec 64-C of the Abolition Act i.e (The Tamil Nadu Estate (Abolition and Conversion into Ryotwari) Act, 1948) reads as under:-
69/74https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 ''64-C- Finality of Orders passed (****) under this Act– (1)Any order passed by the Government or[ other authority under this Act] in respect of matters to be determined for the purpose of this act shall, subject only to any appeal or revision provided byor under this Act, be final (2) No such orders shall be liable to be questioned in any Court of Law.
It would however require a final determination after due notice to all the concerned person who are in possession of the land in Karuvelankulam Village.''
119. As per the decision of the Hon’ble Supreme Court in State of Andhra Pradesh Vs A.P. State Waqf Board and others, 2022 SCC OnLine SC 159, the Waqf Board has power to determine the nature of the property as Section 32(2)(n) but after complying with the procedure prescribed as contained in Section 40.
120. Such procedure contemplates a prior inquiry to be conducted. An inquiry pre-supposes Show Cause Notice, compliance with the principles of natural justice and an opportunity of hearing to parties who are likely to be affected by it.
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121. The proceedings of the Waqf Board do not show issue of any prior notice to the parties who are likely to be affected before such enquiry.
122. The inclusion of the land in Karuvelankulam Village can be justified only after due consideration and after due notice to the parties. In the absence of a prior inquiry, it cannot be concluded that the proceedings initiated thus was in accordance with the procedure prescribed under Section 40 of the Waqf Act,1995 even though there is no final determination as to whether 141.83 acres of land was indeed a waqf property.
123. There is no dispute that the land in question was dedicated to the Waqf, and was also notified in 1954 Gazette. Therefore, rights of the 3 rd respondent also cannot be trampled upon on account of subsequent developments.
124. As no notice has been issued to the persons who are in possession and/or who have purchased the property in 141.83 acres of land in Karuvelankulam Village, the entry in the Waqf Register is directed to be deleted even though mere entry in the Waqf Register ipso facto did not mean 71/74 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14658 of 2021 that there was a final determination or would result in automatic dis-possession straightaway.
125. In the light of the above discussion the writ petition is allowed by giving liberty to the second respondent or the Waqf Board to issue appropriate notice to all concerned persons before proceeding to make a fresh entry in the Waqf Register to include the land in Karuvelankulam Village. No cost. Consequently connected miscellaneous petitions are closed.
18.07.2022
Index : Yes/No
Internet : Yes/No
kkd
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W.P.(MD)No.14658 of 2021
To
1. The Chief Executive Officer,
The Tamil Nadu Wakf Board,
Sarang Street, Chennai.
2.The Chief Executive Officer,
The Tamil Nadu Wakf Board,
Sarang Street,
Chennai.
3.The Secretary,
Nawab Wallajah Sahib Pallivasal
No.31, Cheran Mahadevi Road,
Pettai, Tirunelveli 620 004.
73/74
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W.P.(MD)No.14658 of 2021
C.SARAVANAN, J.
sn/rgm/kkd
Pre-delivery Common Order in
W.P.(MD)No.14658 of 2021
and
WMP.(MD)Nos.11589 & 11592 of 2021
18.07.2022
74/74
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