Andhra HC (Pre-Telangana)
D.Venkata Krishna Rao vs Government Of A.P., Rep. By Principal ... on 3 April, 2012
Author: R.Kantha Rao
Bench: R.Kantha Rao
THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE R.KANTHA RAO
WRIT PETITION No.6148 of 2007 and Batch
03.04.2012
D.Venkata Krishna Rao
Government of A.P., rep. by Principal Secretary,Revenue Department, Hyderabad.
Counsel for the Petitioners: W.P.No.6148 of 2007:Sri B.Adinarayana Rao
Counsel for the Respondents :W.P.No.6148 of 2007
<Gist:
>Head Note:
?Citations:
1. AIR 1961 SC 1442
2. AIR 1962 SC 996
3. AIR 1976 SC 1569
4. AIR 1922 PC 123
5. AIR 1931 Lahore 379
6. 1978 (2) APLJ 399
7. AIR 1985 AP 127
8. (1998) 2 SCC 642
9. (2001) 8 SCC 528 : AIR 2002 SC 402
10. (2006) 10 SCC 696
11. (2010) 5 SCC 203
12. (1996) 7 SCC 269
13. (2005) 13 SCC 552
14. AIR 1966 SC 1089
15. AIR 1969 SC 78
16. (1971) 3 SCC 20 : AIR 1970 SC 645
17. (1986) 4 SCC 537 : AIR 1987 SC 71
18. AIR 1999 SC 22 : (1998) 8 SCC 1
19. AIR 1961 SC 609
20. AIR 1957 AP 368
21. AIR 1977 SC 898
22. (2010) 4 SCC 772
23. (2010) 8 SCC 110
24. (1985) AC 835 : (1985) 2 All ER 327 : (1985) STC 282
25. (1972) 456 US 201 : 1972 L.Ed. 2d 12 (1982)
26. (1983) 459 US 1205 : 75 L.Ed. 2d 438 (1983)
27. 1999 (6) ALD 270 (DB)
28. 2001 (4) ALD 430 = 2001 (2) LS 321
29. 2002 (1) ALD 67 (DB)
30. AIR 2005 Mad 241
31. AIR 1992 SC 1083
32. (2010) 8 SCC 726
33. (1993) 3 ALT 602 (AP)
34. (2000) 1 ALT 201 (AP)
35. (2000) 5 ALD 743 (AP)
36. (2001) 4 ALD 430 (AP)
37. (2008) 6 Kant LJ 358
38. (2008) 2 CTC 492 (Mad)
39. 2009 Ind Law All 1770
40. AIR 1968 SC 271 : (1968) 1 SCR 260
41. AIR 1969 SC 78 : (1968) 3 SCR 662
42. (1985) 4 SCC 10 : AIR 1986 SC 794
43. (1997) 5 SCC 536
44. (2000) 3 SCC 689
45. (2002) 6 SCC 416
46. (2003) 6 SCC 220 : AIR 2003 SC 2696
47. (2003) 7 SCC 350
48. (2009) 1 Bom CR 498
49. 2011 (1) ALD 61 (SC)
COMMON ORDER:(Per Hon'ble Sri Justice V.V.S.Rao) PROLOGUE In this group of seven writ petitions, the issue is whether the notification issued by Andhra Pradesh State Wakf Board (the Wakf Board, for brevity) declaring certain lands as wakf properties is illegal and whether the allotment of those lands by the Government of Andhra Pradesh to Andhra Pradesh Industrial Infrastructure Corporation (APIIC) and further allotment by the latter to third party industries is not illegal. Three writ petitions, being W.P.Nos.17192, 20614 and 20372 of 2007 challenge allotment of land and the remaining are filed for invalidation of the Wakf Board notification issued in 2006. The two questions need to be addressed without ignoring the fact that persons interested in the wakf have already filed suits before the Andhra Pradesh State Wakf Tribunal (the Wakf Tribunal) under the Wakf Act, 1995 (the Wakf Act, for brevity) and are pending for trial.
The battle line between the group opposing the wakf board's decision and the other group supporting it is very well drawn given the strategic location of the land involved in the Government facilitated land transaction. The submissions spread over four days covered wide ranging issues with reference to Islamic Law of Wakfs, jagir land tenures and inam tenures. The core issue, however, which was focussed upon by the rival counsel is the maintainability of the writ petitions in view of the provisions of the Wakf Act entrusting the jurisdiction to resolve all disputes regarding wakfs to a specially constituted Wakf Tribunal and the provisions in the Wakf Act which expressly bars the jurisdiction of civil Courts. It is axiomatic that a Parliamentary law or a state law; a constitutional amendment included - denying judicial review by the Supreme Court and High Courts would be ultra vires as contravening basic structure doctrine. This is, however, not to suggest that the Court exercising judicial review power can ignore well settled judicially evolved principles which curtail the power on the ground of non-reviewability or non-justiciability besides other limitations in exercise of power.
INTRODUCTION Dargah Hazrat Hussain Shah Vali (the Dargah, for brevity) statedly was endowed huge extents of land, allegedly by Muntakhab No.2643 (31 Amardad 1300 Fasli or 1890 AD) by the Nizam. The grant of jagir to the persons maintaining the Dargah (fateha, prayer and residence of mutawalli) is statedly service inam. Between 1951 and 1957 there were disputes among the successors of mutawalli on one hand and the wakf department on the other. The Nazim-e-Atiyat under Andhra Pradesh (Telangana Area) Atiyat Enquiries Act, 1952 (the Atiyat Act, for brevity) and this Court in a writ petition declared the said property of the Dargah as conditional grant in favour of Dargah. An extent of 5506.50 square yards in survey Nos. 260/1, 261 and 262 of Manikonda village (also described as Dargah Hazrat Hussain Shah Vali village) was notified as wakf property of Dargah (the Mosque, Khankah and a house). It was done by A.P.Gazette Notification No.6A, dated 09.02.1989 as surveyed under Section 4(3) and published under Section 5(2) of the Wakf Act, 1954 (1954 Act, for brevity).
The Wakf Board published another notification, A.P.Gazette No.14, dated 06.04.2006, by way of addendum/errata to earlier notification (hereafter, errata notification) correcting columns 10, 11 and 12 of the Registration Form. As a result of this, the service inam lands attached to the Wakfs which were not notified were included in the list of wakfs. This land admeasuring Acs.1654.32 guntas in various survey numbers of Manikonda village (hereafter called, subject land or Manikonda lands) is at the centre of the controversy. The Government claims that the Manikonda land was jagir land and after abolition of jagirs under the Hyderabad (Abolition of Jagirs) Regulations, 1358 Fasli (hereafter Jagir Regulations), the land was taken over by the Government duly paying commutation amount to the successors or legal heirs of mutawalli. They, therefore, would contend that the land vests in the Government and even as per the orders of the Nazim-e-Atiyat, there is no permanent dedication to the wakf property. In the absence of any permanent dedication, it cannot be treated as wakf property. The Government would also allege that the impugned errata notification was issued without conducting survey and without following the procedure contemplated under Sections 4 and 5 of the Wakf Act. The APIIC and its allottees toe the same line with slight variations which in a controversy like this are unavoidable.
SUMMARY OF PLEADINGS The case against the Wakf As indicated supra, there are three writ petitions supporting the case of the Wakf and Wakf Board and four writ petitions against it. The State Government is in forefront in challenging the errata notification. Therefore, it would be sufficient if we refer to the following pleadings in W.P.No.23578 of 2007 filed by the Government and the APIIC and if necessary supplant with the pleadings from other writ petitions filed against the Dargah and the Wakf Board. Manikonda lands are jagir lands. The Jagir Regulations came into force on 15.08.1949. Under Regulation 6 of the Jagir Regulations, Manikonda lands vested in the State. The Government issued orders in G.O.Ms.No.1, dated 03.10.1949, whereunder all Jagir villages were taken over by the Government (Diwani). Even revenue records from times immemorial classify it as Government land. But as per the survey and settlement operations completed by 1332 Fasli, the lands were shown as Poramboke, Gairan and Kharij Khata (Government lands) under occupation for dry/wet cultivation by several persons who claimed as patta lands or Makhta and Mafi inam lands. The revenue records like Sethwar, Khasra Pahani 1954-55 prepared under the Hyderabad Land Census Rules, 1954 and the record of rights prepared under the Andhra Pradesh (Telangana Area) Record of Rights Regulation, 1358 Fasli, would show it as Government land for more than fifty years. The subject land was allotted to APIIC. From 1995 onwards, they inturn, allotted to various companies, namely, M/s.Emmar Properties, Microsoft, Infosys, Wipro, Polaris, VIIS and Lanco through public auction. These companies developed the land by investing huge some of money. The Wakf Board issued Gazette Notification dated 09.02.1989 showing only the land occupied by the Dargah, Khankah and house of mutawalli admeasuring 5506 square yards as wakf property. The said notification was issued after the statutory survey conducted by Survey Commissioner under the Wakf Act, 1954. The Government issued G.O.Ms.No.7, Minorities Welfare (Wakf-I) Department dated 03.03.2001 ordering second survey of the wakf property in the State as per Section 4(6) of the Wakf Act. A final report is yet to be submitted. As per Andhra Pradesh State Wakf Rules, 2000 (the Wakf Rules, for brevity), the surveyor is required to issue notice to all concerned physically verifying ground reality and submit report about the wakf properties. The surveyor is required to follow the Wakf Rules, the surveyor has not submitted final report and even before that the Wakf Board issued the impugned errata notification attaching Manikonda lands to the Dargah.
Since 1949, the lands in dispute vested in the State Government after abolition of Jagirs. Under Section 16 of the Jagir Regulations, the lands cannot be treated as wakf properties, even if it is shown to have been endowed on the Dargah. All the jagir villages are transferred to Diwani by the end of September, 1949 vide G.O.Ms.No.1, dated 03.10.1949 issued by the Government of Hyderabad. As per the order dated 31.05.1957 in File No.2/56 of Nazim-e-Atiyat and order No.545, dated 29.05.1956 of the Court of Wards of Government of A.P., the Jagir village of Manikonda was granted to Syed Safiullah Hussaini in 1290 Fasli. After his death, his son Akbar Hussain applied to the HEH Nizam for re- grant. A Firman Mubarak 1st Ramzan, 1333 Fasli for doing services to the Dargah was issued. It is mashrut-ul-khidmat. After the death of Akbar Hussain, as his two sons Syed Nadeemullah and Safiullah Hussaini were minors, the management of the estate came under the supervision of the Court of Wards. Later Syed Nadeemullah migrated to Pakistan and Nazim-e-Atiyat gave muntakhab for Manikonda lands to legal heirs of Safiullah Hussaini. The dispute among the legal heirs was carried to the High Court in W.P.No.666 of 1959, which was disposed of on 14.12.1961. After abolition of jagirs, the Government paid the commutation amount to legal heirs of Safiullah Hussaini vide Order No.78, dated 30.09.1952 and Order No.78/1 dated 02.06.1958. These two orders clearly mention that Manikonda and Guntapalli jagir grants are subject to jagir administration and subject to inams abolition.
The grant of jagir stands cancelled on the death of the grantee and the right of the successor is deemed as a fresh grant. The ownership of the land always remains with the Ruler. As found by Nazim-e-Atiyat, the grant was given to Safiullah Hussaini for performing the service to the Dargah and therefore, it cannot be treated as endowment to wakf. There was no evidence of the Ruler dedicating Manikonda jagir to the wakf and the grant as mashrut-ul-khidmat was not treated as endowment. The title and possession always remained with the Ruler and the Manikonda enjoyed only the usufruct, and therefore, after abolition of jagirs, commutation sum was paid to the institution in the prescribed manner as per Regulation 10-A of the A.P. (Telangana Area) Jagirs Commutation Regulation, 1359-F (Commutation Regulations, for brevity).
The Government's writ petition also refers to the proceedings before this Court as well as Wakf Tribunal. It is submitted that the remedy of the writ petition is not barred as there are no questions of fact to be adjudicated and Manikonda land was never recognized as wakf property in the revenue records at any point of time. Besides seeking a writ of Mandamus declaring the Gazette Notification dated 13.03.2006 issued by the Wakf Board as non est, arbitrary and illegal, it is also prayed to transfer O.S.No.99 of 2007 pending before the Wakf Tribunal for being tried along with the writ petition.
W.P.No.6148 of 2007 is filed by D.Venkata Krishna Rao and others challenging the errata notification insofar as it declares lands in survey Nos.187 to 190 and 194 of Manikonda village as service inam lands of Dargah as illegal and contrary to the provisions of the Wakf Act and for a direction to set aside the same. The allegations in the affidavit in support of the writ petition are as follows. As per the survey conducted in 1322 Fasli (1913 AD) the land admeasuring Acs.40.30 guntas in survey Nos.185 to 192, 194 to 196, 247 and 251 was classified as Makta land in the name of pattadar Syed Akbar Hussaini Saheb and remaining Acs.1297.13 guntas in various survey numbers was shown as Government land. The Khasra Pahani for 1954-55 recorded Syed Mohammed Hussaini as a pattadar. In 1977, third parties filed application before Revenue Divisional Officer, Chevella under Section 67(a) of the A.P. (Telangana Area) Land Revenue Act, 1317 Fasli (hereafter called, Land Revenue Act). It was rejected on 15.04.1981. The appeal filed before the Joint Collector, Ranga Reddy District was allowed on 15.07.1981 directing the issue of certificate. The pattadars approached the Commissioner, Survey, Settlement and Land Records. By order dated 26.09.1997, he remanded the matter to Joint Collector. In respect of the same, mutation was granted in favour of third parties who claimed to be cultivating tenants and the case before the Joint Collector was withdrawn. After the death of the pattadar, his legal heirs alienated the property in favour of third parties in 1999. The petitioners purchased these lands during the period from 2000 to 2006 under separate registered sale deeds. In the meanwhile, the impugned errata notification was issued to the persons who are likely to be affected. It is also alleged that since 1913, the land is shown as patta land.
The writ petition being W.P.No.28112 of 2007 is filed by Samala Renuka Devi, her son (legal heirs of Papaiah) and her four nephews (legal heirs of Gandaiah), challenging the errata notification. They allege that their predecessors were owners of land admeasuring Acs.23.00 in survey No.260; the Mandal Revenue Officer issued pattadar pass books and title deeds in their favour; they entered into development agreement with M/s.Sprint Infrastructures on 25.04.2007; when they approached Sub Registrar the registration of the document was refused informing that as per the errata notification it is wakf property. Being aggrieved, they challenged the notification and the grounds are similar to those raised in other matters.
The fourth writ petition being W.P.No.4515 of 2008 challenging the errata notification is filed by M/s.Lanco Hills Technology Park Private Limited (Lanco Hills) and its Chief Executive Officer. Insofar as the nature of Manikonda lands being jagir, the disputes that were resolved by Nazim-e-Atiyat, the High Court, the abolition of jagirs and the controversy regarding mashrut-ul-khidmat, the writ affidavit contains the averments almost similar to those in the Government writ petition. A reference to the earlier proceedings before this Court and before the Wakf Tribunal is also made. The case of the Lanco Hills is that under the ICT policy 2005-2010, the Government designated APIIC as nodal Agency and allotted Acs.108.00 guntas in R.S.No.201 of Manikonda village, which was handed over on 16.03.2004. Thereafter, the APIIC issued notification on 22.12.2004 calling for request for proposal (RFP). Lanco Hills classified in the preliminary screening and submitted bids for Acs.100.00 for development of IT park at total estimated cost of Rs.5,500 crores. It emerged as successful bidder for developing and marketing IT park. An agreement was entered with APIIC on 04.11.2006. The project includes developing integrated world class IT park/ITSEZ, modern space for over 75,000 professionals to make it the largest business District and world's largest single phase development. The grounds urged in support of the writ prayer are also similar to the writ petition filed by the Government.
The case supporting the Wakf The three writ petitions being W.P.Nos.17192, 20372 and 20614 of 2007 are filed pro bono publico by an MLC, a public spirited Muslim and an MLA respectively. They are aggrieved by the allotment of Manikonda lands to eight private companies as well as the Moulana Azad Urdu University and Indian School of Business Management. As the case projected by them is similar to the case of the Wakf Board, summed up infra, it is not necessary to advert to allegations in these matters. It would be enough to mention that while supporting the errata notification, the petitioners contend that the allotment of Wakf land by the Government/APIIC to private persons is void under Section 51 of the Wakf Act. Be it also noted that in W.P.No.17192 of 2007, the learned single Judge passed interim directions on 20.09.2007 in W.P.M.P.No.21993 of 2007 prohibiting constructions by M/s.Emmar Properties and M/s.Lanco Hills. The Order of the learned single Judge in W.P.M.P.No.21993 of 2007, dated 20.09.2007 was reversed by the Division Bench in the Writ Appeal Nos.796, 805 and 826 of 2007, dated 26.10.2007.
The case of the Dargah and the Wakf The Wakf Board and the Dargah are made parties. It is not necessary to sum up the case set up in each writ petition. There is no gainsaying that as per Section 32(1) of the Wakf Act, the Wakf Board has the powers of general superintendence over all the wakfs in the State. It is the custodian, guard and protector of all the wakf properties in the State and as per the expediency and need, can appoint committees for supervision of wakfs, recognize/remove mutawallis and assume direct management of the wakf. Though the wakf is to be administered in accordance with the wakf Act and as per the wishes of the wakif, a registered wakf or a wakf by user or any other wakf is always and ought to be under watchful eye of the Wakf Board. It keeps the record of all the wakfs including the particulars of properties endowed to each wakf. Therefore, we may refer to the counter affidavit of the Wakf Board in W.P.No.23578 of 2007. After that if necessary we will also notice salient points, if any, peculiar to the case of the Dargah. The elaborate counter affidavit of the Wakf Board in W.P.No.23578 of 2007 (arrayed as respondent No.1 therein) contains the following averments and allegations.
(a) The errata notification attaching the disputed property to the Dargah is based on Shahi Farman (Royal Grant) which was confirmed by the Prime Minister of Nizam and other officers. The orders of the Prime Minister, First Taluqdar, Second Taluqdar, the order passed by Nazim-e-Atiyat dated 24.09.1958 rejecting the review petition, Muntakhab No.98, dated 27.11.1958 issued by Nazim-e-Atiyat, issued by orders of Board of Revenue dated 14.11.1959 and other order of the High Court in W.P.No.666 of 1959, dated 14.12.1961 also support the errata notification. The first Survey Commissioner mentioned in the report that Manikonda and Guntapalli jagir villages are allotted to Dargah for rendering service to the institution. The errata notification is not new and independent one. It only provides requisite details in the original notification and therefore, it cannot be looked into in isolation.
(b) The mash comprising Manikonda, Rayadurg and Guntapalli inam villages was granted to Hazarat Shaik Bade Saheb. It was listed in exempted jagirs as found by Nazim-e-Atiyat by order dated 31.05.1957. After abolition under Jagir Regulations, it never vested in the State Government under Section 6 thereof, which has no application. The allotment of some of these lands by the Government to APIIC is void. The order of the Court of Wards dated 29.03.1956 was published in Hyderabad Deccan stating that by order of the Chief Minister, the estate of late Syed Akbar Hussain was taken under the supervision of Court of Wards in 1349 Fasli and the commutation of the jagir was sent to the extent of shares of the descendents of the holder of the estate and the rent to the Muslim Wakf Board towards service expenses of the Dargah. It was also mentioned that the properties were meant for rendering service to the Dargah which were being managed by Muslim Wakf Board. As per the orders of the Chief Minister, Nazim-e- Atiyat conducted enquiry, who held that Manikonda and Guntapalli villages are grants to the Dargah and all items of revenue include the conditional service to the Dargah. The review by some was dismissed and the High Court in W.P.No.666 of 1959 confirmed the order of the Nazim-e-Atiyat holding that the two villages were given as conditional grant in favour of the Dargah.
(c) The notification dated 09.02.1989 was issued showing certain properties attached to the Dargah. The said notification does not contain the entire area of the land held as mashrut-ul-khidmat. Therefore, the Wakf Board issued errata notification duly correcting the omission in the earlier notification, which always relates back to the original notification.
(d) The Survey Commissioner appointed by the government forwarded report under Section 5(1) of the Act. It was the basis for issuing the notification dated 09.02.1989. The Survey Commissioner is vested with the powers to conduct survey and when he was appointed by the Government itself, the question of issuing notice to the Government does not arise. Section 51 of the Wakf Act bars the alienation of mosque, khankah or any other institution. The allegation that the Dargah is not exempt from acquisition of the land is incorrect. A wakf is always wakf and any alienation of its property is void. Regulation 10-A of the Commutation Regulations has no application. When the grant is to an institution, payment of commutation to the institution does not arise. The jagirdar of such property have right only to enjoy the usufruct. The grant was made for the maintenance of late Sajjada family and other dependents who rendered service to Dargah. Manikonda was recognized as mashrut-ul-khidmat inam granted by the Farman of the HEH the Nizam in 1249 Fasli as confirmed by the Prime Minister Nawab Muqtar-ul-Mulk. The Dargah and the Wakf Board also submit that under Section 13 of the Atiyat Act, the order passed by the Atiyat Court is final subject to any decision of the civil Court in matters relating to succession or other questions of personal law.
(f) The service inam grant for the purpose recognized by Muslim law as pious, religious or charitable would constitute wakf property. It is subject to rendering service and performing various obligations to the Dargah or religious institution. When the inam is burdened with service and answers all ingredients of wakf, the grant of patta would not effect the character of the wakf property.
(g) Manikonda lands are strategically located near the IT companies. The lands are rightfully belonging to the wakf institution cannot be handed over as it is void. The State has not placed all the records before this Court though they are in custody of them and therefore an adverse inference can be drawn against them. The State purported to allot the land at Rs.30 crores per acre which is a pittance. The instrumentalities of the State were used as a tool to acquire valuable lands by colourable exercise of power to serve private interests. The impugned notification only sets out the facts and any dispute thereto requires trial and detailed evidence on number of contentious issues. Therefore, there is no necessity to transfer O.S.No.99 of 2007 from Wakf Tribunal to the High Court. The Government has an effective and efficacious remedy under the Wakf Act and therefore, a writ petition would not lie.
(h) All the issues raised by the Government are questions of fact which are required to be decided after a full-fledged trial by the Tribunal specially constituted under Section 83 of the Wakf Act. In order to invoke Article 226 of the Constitution, the Government has to establish whether they got any rights which are affected. The Tribunal is the proper forum for doing so and therefore, the writ petition is not maintainable.
The counter affidavit filed by the President of the Managing Committee of the Dargah also contains the allegations and averments which are similar to those made by the Wakf Board summed up herein. It is, therefore, not necessary to repeat the counter averments made by the Dargah.
Submissions of the Government The following arguments for invalidation of the impugned errata notification are advanced by the learned Advocate General for the State and M/s.J.J.Bhatt, D.Prakash Reddy and C.Kondanda Ram, senior advocates appearing for M/s.Lanco Hills, Microsoft India and VJIL respectively. The other counsel Sri P.Venugopal, counsel for Emmar Properties made supplemental submissions. M/s.Shaik Rahaman Mahajir and M.V.Suresh Kumar appearing for the Wakf Board and the Dargah respectively and other counsel appearing in the writ petitions filed pro bono publico supported the case of the Wakf Board and the Dargah.
(a) The subject land was jagir land. After abolition of the jagirs, the land was taken over by the Government and commutation amount was paid. The land, therefore, vests in the Government.
(b) The land was granted as inam for rendering service to the Dargah. There is no permanent dedication to the wakf. After abolition of the jagirs, the land vested in the Government and the inamdars were paid the commutation amount. The Nazim-e-Atiyat Court considered this aspect, and therefore, the issue cannot be agitated either before the civil Court or the Wakf Tribunal.
(c) The impugned errata notification was not preceded by the enquiry as per the procedure contemplated under Sections 4 and 5 of the Wakf Act. Therefore, it is illegal.
(d) The rule of exhaustion of alternative remedy does not apply because the State and the allottees assail the validity of errata notification which cannot be decided by the Wakf Tribunal. The Wakf Board failed to exercise power properly as contemplated under Sections 32, 24 read with Section 40 of the Wakf Act before issuing the impugned notification. It violates principles of natural justice and persons who are likely to be affected were not given notice either at the stage of enquiry if any or at the stage of taking a decision. The Wakf Board has no power to issue an errata as Survey Commissioner has not submitted any report of second or subsequent survey.
The Wakf Board and the Dargah contend as follows.
(a) The Wakf Act bars the jurisdiction of civil Court in respect of any dispute relating to any wakf. If any question arises whether it is the property of wakf or not, it has to be adjudicated by the Wakf Tribunal which has wide powers to decide all disputes. A notification or an errata notification declaring any wakf is final unless it is set aside by the Wakf Tribunal. There is abundant documentary evidence dating back to 1249 Fasli. When there are serious disputed questions of fact, a writ petition would not lie. The persons interested and the Dargah have already filed the suits under Section 6(1) read with Section 83(2) of the Act before the Wakf Tribunal and therefore, the High Court may not be inclined to interfere in these writ petitions.
(b) The subject land even prior to Jagir Regulations was shown as mashrut-ul- khidmat to the Dargah. This stands concluded and admitted by the Government. The Jagir Regulations and A.P. (Telangana Area) Abolition of Inams Act, 1955 exempt jagirs held by or for religious institutions from the operation of the effect of the abolition. The payment of commutation was not in respect of Manikonda lands. Even otherwise, commutation was paid as per suls-e-sulsan principle made applicable by Commutation Regulations to the legal heirs of the mutawalli. It does not change the character of the inam being a grant to the wakf.
(c) The order of the Nazim-e-Atiyat dated 27.11.1958 conclusively shows that Manikonda was a crown grant burdened with service to Dargah and therefore, Jagir Regulations have no application.
(d) Sections 32(1), 32(2)(h)(m)(n) and (o), 36 and 40 of the Wakf Act belie any contention that the Wakf property comes into existence only when it is included in the list of wakfs.
A wakf is always wakf. Whether it was included in the list of wakfs or not? Whether it was included in the survey report; and whether it was notified or not do not dilute the character of the property being wakf. The notice contemplated under the Explanation to Section 6(1) is intended only during the course of relevant enquiry under Section 4 of the Wakf Act. Such notice is not contemplated when action is taken by the Wakf Board suo motu for registering any property as wakf. The power of the Wakf Board under Section 40(3) overrides other provisions in the Wakf Act.
(e) The Government of A.P., in the Department of Minorities Welfare admitted the Manikonda lands as wakf property of the Dargah. Though the writ petition was filed on 05.11.2007 the Government suppressed this fact which was mentioned in their Memo dated 25.01.2007 and therefore, the writ petition is liable to be dismissed for suppressio vari suggestio falsi.
The background facts and the rival submissions throw up three main questions for consideration. These are as follows.
I. What is the effect of Hyderabad (Abolition of Jagirs) Regulations, 1358F and the Hyderabad Jagir (Commutation) Regulations, 1359F and whether the lands vested in the State Government after abolition of Jagirs?
II. Whether the errata notification dated 06.04.2006 is ultra vires the provisions of the Wakf Act, 1995?
III. Whether the writ petitions challenging the errata notifications are maintainable and whether they are barred in view of the effective and efficacious alternative remedy available under the Wakf Act, 1995?
In addition to the above, incidental points do arise which if necessary are adverted to at appropriate place.
I. Effect of Jagir Abolition Regulations During the reign of Asaf Jahi Rulers, Jagir was one of the land tenures. The sovereign - the Nizam used to grant under the general appellations of inam or madad mash. The grant was transfer of the public revenue of a given tract of land made over to a servant of the State. The grant of agricultural land or estate is enjoyed only by the grantee called Jagirdar. Upon the death of grantee, it reverts to the sovereign owners renewed by an order of succession in favour of heir(s) of the original Jagirdar. The Ruler always remained the absolute paramount owner of all the lands and what was granted is only the usufructury right in the given tract of land. As distinguished from madad mash, Atiyat Shahi is a subject royal grant given by the King for the life time of grantee or inamdar. The features are inalienability and non-heritability and the right of jagirdar to enjoy usufruct till death. Whereafter the land reverts to the grantor (Raja Rameshwar Rao v Raja Govind Rao1 and Sikander Jehan Begum v State of A.P.,2). Mashrut-ul-khidmat is generally given to a person engaged in service of a religious purpose or a person in-charge of wakf. In addition to these, Royal grants were given for religious institutions. These were permanent and irreversible. The right, title or interest of the grantor extinguished and vested in Almighty God (Mohd. S.Labbai v Mohd. Hanifa3). A wakf also is presumed by user in certain cases and whatever property is treated as wakf, cannot be reversed because it always remains a wakf (Vidya Varuthi v Baluswami4).
The character of Manikonda lands The Chief Secretary who filed an affidavit in support of Government writ petitions made two allegations which have overbearing relevance on the merits of the case. Whether we should decide the contentious issues in relation to these allegations is a matter which is adverted to a little later under appropriate issue. Hence, we enter a caveat and say that whatever we say in relation to this point and the next point, i.e., the effect of Jagir Abolition are result of prima facie consideration. The Government alleges that Manikonda is a jagir village. It was inam granted by the Nizam to the persons who were performing service to the Dargah. The Government even admits that it is mashrut-ul-khidmat before 1290 Fasli (1880 AD) and therefore even under the Act, it cannot be treated as an endowment or wakf. The Dargah and the Wakf Board contend that mashrut-ul-khidmat presupposes dedication to wakf even if it is granted for rendering service to the wakf. In this background, it is therefore necessary to refer to important case law in this regard.
In Muslim law, to determine the wakf one need to look to the capacity of the wakif (endower), the dedication of the property to the wakf or mode of constitution, whether property is capable of being endowed and the purposes which are recognized by Islam as charitable, pious and religious. An intention to set apart a property or giving in charity or declaring that one has given in charity, may not always constitute wakf. There should be at least oral dedication to the Almighty God. Actual setting apart of property permanently for pious object is sufficient. The dedication to the wakf need not be strictly proved. It can even be presumed by inference drawn from the acts or conduct of the parties. Further, user is an important evidence of dedication because by such user, land and buildings become wakf such as cemeteries, mosques and khankahs etc. There are large number of precedents summarizing these principles. We would notice some of them starting from the oft quoted decision of the Privy Council.
Lord Ameer Ali in Vidya Varuthi considered the essential characteristics of wakf and spoke for unanimous judicial committee. It is apt to excerpt the following.
....When once it is declared that a particular property is wakf, or any such expression is used as implies wakf, or the tenor of the document shows, that a dedication to pious or charitable purposes is meant, the right of the wakf is extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit. The manager of the wakf is the Mutawali the governor, superintendent, or curator...But neither the sajjada-nashin nor the Mutawalli has any right in the property belonging to the wakf; the property is not vested in him and he is not a "trustee" in the technical sense.
In Mohd. S.Labbai, Supreme Court observed.
We agree with the view that a place may be dedicated as a mosque or masjid without there being any building as held in Akbarally's case (AIR 1932 Bom 356 = ILR 57 Bom 551). But in the instant case since the building in the nature of a mosque was built a clear case of dedication has been made out. Once the mosque was constructed it stood dedicated to God and all the right, title and interest of the owner got completely extinguished.
(emphasis supplied) In Islam religion, a takia is a place where faqirs reside to impart religious instruction to the disciples. A question arose as to whether takia can be recognized as valid object of wakf. In Haji Ali Md. v Anjuma-I-Islamia5, a Division Bench of Lahore High Court referring to earlier case law answered it as follows.
There are numerous decisions which lay down that takias and khankahs, properly so called, are religious foundations among the Mahomedans and the property attached to them is wakf and therefore tied up in the ownership of God. ... ... But, in order to determine the religious character of a takia and before applying to it the incidents of a Mussalman wakf one must, in the absence of direct proof of dedication, take into consideration the early history of the institution and the existence of religious associations and a holy atmosphere about it, and, for this purpose, the general setting, in which the property claimed to be wakf is placed, is of considerable importance.
(emphasis supplied) In R.Doraswamy Reddy v Board of Wakf6, learned single Judge of this Court considered the question whether service inam is a wakf within the meaning of 1954 Act. In that case, the plaintiff purchased a part of the property out of larger extent which was notified as wakf. In this declaratory suit, he contended that it is not a wakf property but forms part of personal inam granted to the ancestors of the vendors. The trial Court as well as the first appellate Court rejected the suit for declaration of title. In the second appeal, a submission was made for the appellant before this Court that the property does not vest in the Almighty but it vests in the person who renders service. Rejecting the plea, this Court held thus:
... ... It is true that the land was granted to an individual to perform service. But it does not mean that he acquires title to the property. Similarly, if the land can be resumed for non-performance of service and can be regranted to another person for rendering service, it does not mean that the original grantor continues to be the owner of the property. When once the wakf was created it continues to be a wakf. When the inam is resumed and regranted it does not mean that there is revocation of the service. It only means that the wakf property is entrusted to another individual to perform the service. (emphasis supplied) In A.P.Wakf Board, Hyderabad v S.Syed Ali Mulla7, the A.P. Wakf Board filed a suit being O.S.No.148 of 1967 on the file of the Court of Subordinate Judge, Visakhapatnam. The suit was for cancellation of registered lease deed dated 24- 6-1949 executed by one Rassol and others in favour of 10th defendant for 99 years and for cancellation of subsequent leases or sub-leases executed in respect of the same property and for recovery of possession of land from 21 persons admeasuring an extent of Ac.2,215.85 of Devada village. The plaintiff claimed that the property covered by inam title deed No.42 is a wakf property. The suit was opposed on the ground that the property is not wakf property but it is personal property of the lessors. The trial Court dismissed the suit. In appeal before this Court, the question that arose was whether the property is a wakf within the meaning of Section 3(1) of the 1954 Act and what was the nature and character of the original grant. The original grant was not available in the enquiry held by the Inam Commissioner in 1863. But, inam enquiry revealed that the original grant was made to support Dargah of Visakhapatnam. It was in evidence that the legal representatives of Ansar Saheb, Madina Saheb and Mohammed Saheb, the ancestors of the lessor were performing service and their names were mentioned under the word 'Dargah'. Therefore, the inam title deed No.42 was issued to the legal representatives of the above three named persons. This Court observed that the extract of Inam Fair Register gives indication that the grant was to support Daragah. Later, in 1902, inam title deed was cancelled and the Mokhasa village was resumed, presumably for the reason that the services were not rendered.
The mokhasadars questioned the resumption by filing O.S.No.16 of 1902 on the file of the Court of the District Judge, Visakhapatnam. They succeeded in the suit. The Government carried the matter in appeal being A.S.No.55 of 1904 before the Madras High Court. The matter ended in a compromise. The compromise inter alia provided that the Government shall restore the land to mokhasadars to enjoy the properties for performing the duties connected with the Dargah subject to certain conditions. Having regard to the compromise and the entries in Inam Fair Register this Court held that the entries in Inam Fair Register would establish the ingredients of wakf as defined under Section 3(1) of the Wakf Act. It was also observed that for the purpose of constituting a wakf, the dedication need not be in favour of the Dargah and it is enough if the dedication is made for a purpose recognised by Muslim Law as pious, religious or charitable, and that the grant by way of service inam made for pious, religious and charitable purposes would also constitute wakf. In the context, relying on Doraswamy Reddy, the Division Bench observed as under.
Wakf in its nature is a permanent dedication of property for a purpose recognised by the Muslim law as pious, religious or charitable. When once the property is held to be wakf, it always retains its character as a wakf and the grant of a patta in favour of the Mokhasadars in possession of the property does not in any manner detract from the earlier dedication made of the property constituting the same as wakf.
(emphasis supplied) The unsuccessful lessees carried the matter to the Supreme Court against the judgment of the Division Bench and the appeal was dismissed. In Sayyed Ali v A.P. Wakf Board, Hyderabad8, while agreeing with the view taken by this Court that the disputed property is a wakf, the Supreme Court laid down the following test. In the absence of such documents what is to be considered is, whether taking an overall view of the evidence on record, the Wakf Board has succeeded in establishing that there is a permanent dedication of the property as wakf.
The effect of the publication of wakfs under the 1954 Act has been elucidated thus.
Parliament has enacted the Wakf Act to provide for better administration and supervision of wakfs. Under sub-section (2) of Section 5 of the Act the Board is required to publish in the Official Gazette the list of wakf properties whether in existence at the commencement of the Act or coming into existence thereafter. Section 6 of the Wakf Act further provides that if any question arises whether a particular property specified as wakf property in the list of wakfs published under the Act, is a wakf property or not, the Board or Mutawallis of the wakf or any person interested therein, may institute a suit in a Civil Court of Competent jurisdiction for decision of the question and the decision of the Civil Court in respect of such matter shall be final. It is also provided therein that no such suit shall be entertained by the Civil Court after the expiry of one year from the date of the publication of the list of wakfs under sub-section (2) of Section 5 of the Act. Sub-section (4) of Section 6 further provides that the list of wakfs published under sub-section (2) of Section 5 shall, unless it is modified in pursuance of a decision of the civil court under sub-section (1), be final and conclusive. Therefore, any dispute relating to the character of wakf property is to be decided in the manner provided under the Wakf Act. Subject to the result of a civil suit, if filed, the list of wakfs published in the Official Gazette is final and conclusive. In the present case, the disputed property was shown as wakf property in the A.P. Official Gazette on 30-11-1961 and no suit having been filed challenging the wakf property, the entries in the Official Gazette describing the property as wakf became final and conclusive.
(emphasis supplied) In Tamil Nadu Wakf Board v Hathija Ammal9, the Supreme Court while recognizing the power of the Wakf Board under Section 27 of the 1954 Act to collect information and decide whether a particular property is a wakf property or not, held that, "if any property has been omitted by inadvertence or otherwise, then it is for the Wakf Board to take action as provided under Section 27 of the Act. If the Wakf Board has reason to believe that a particular property is a wakf property then it can itself collect information and if any question arises whether a particular property is a wakf property or not, it may, after making such enquiry as it may deem fit decide the question and such decision of the Wakf Board shall be final unless revoked or modified by a civil Court". Further as held by the Supreme Court in M.P.Wakf Board v Subhan Shah10, "the power vested under Section 27 in the Wakf Board to declare the property as wakf and its decision is final and the Wakf Tribunal under 1995 Act being an adjudicatory body cannot usurp the power and it should be left to the Board which is statutorily empowered therefor". Therein it was also held that, "when the Wakf Board issues notification attaching any property to the wakf it can only be invalidated by the Wakf Tribunal and it cannot frame a scheme for managing the affairs of the Dargah".
At this stage, instead multiplying the authorities, we may reiterate the well known principles in this regard.
(1) Mohamedan Law of wakf owes its origin to a rule laid down by the Prophet and means "tying up of property in the ownership of God and Almighty and the devotion of the profits for the benefit of human beings"'. (2) When a founder dedicates the property for a wakf, the ownership of the founder is completely extinguished.
(3) When once it is declared that a particular property is wakf or any such expression is used implying wakf or the document shows that there is dedication for a pious or charitable or religious purpose, the right of the person is extinguished and the ownership is transferred to the Almighty. The manager of wakf is mutawalli. Though mutawalli is the administrator, governor, superintendent or curator of the wakf property, he has no right in the property belonging to the wakf.
(4) The dedication need not specifically be in favour of a place of worship, khankah, Dargah, cemetery etc. It is enough if the dedication is made for the purpose recognised by Muslim law as pious, charitable or religious. (5) Service inam granted to individuals burdened with service for the purposes which are pious, religious or charitable, answers description of all the ingredients of wakf.
(6) Even if the grant of the land is for rendering service to wakf, the construction of mosque or khankah on the land itself is sufficient proof of dedication to wakf.
(7) When once the property is held to be wakf, it always retains its character as a wakf and the grant of patta to service inamdars and persons in possession, does not in any manner change its character.
(8) In a case where the inam is service inam for rendering service in connection with a pious, religious and charitable purpose, the holder of the inam burdened with service does not acquire title to that property. If the land is resumed from such inamdar for non-performance of service and re-granted to another person it only means that the wakf is entrusted to another individual to perform service.
Post abolition situation The learned Advocate General relies on the Regulation 16 of Jagir Regulations, Rule 6 of the Andhra Pradesh (Telangana Area) (Abolition of Jagirs) Rules, 1358 Fasli (hereafter called, Jagir Abolition Rules) and Regulation 10 of Commutation Regulations, which read as under.
Jagir Regulations
16. Special provision for Jagirs granted to temples etc.:- The provisions of this Regulation shall apply so far as may be to any jagir granted to a temple or mosque or to any institution established for a religious or public purpose:
Provided that the case of such jagir-
(a) the percentage of the gross revenue to be paid to Government, shall notwithstanding anything contained in Section 8, be such percentage not exceeding ten as the Government may by notification in the official gazette direct either generally or in respect of a particular jagirdar or a particular class of jagirs;
(b) the distribution or application of the net income shall be effected in accordance with the rules made under this Regulation which shall be so framed as to respect so far as possible the wishes of the grantor and to be in consonance with custom and usage.
Jagir Abolition Rules
6. In the case of a jagir granted to a temple or mosque or to any institution established for a religious or public purpose, the net income mentioned in proviso (b) to Section 16 shall be distributed in the following manner:-
(a) One half of the net income shall be reserved for the fulfillment of the object of the grant and out of the other half one half shall be paid to the jagirdar, Mutawalli or other person entitled to perform duties as the case may be and the remaining half shall be distributed among the Hissedars in the proportions to which they are under the existing law entitled;
(b) the Jagir Administrator shall apply the portion of the net income reserved under clause (a) in such manner as would fulfil the object of the grant and shall also arrange for the maintenance of the accounts thereof;
(c) the procedure laid down in Rule 4 for making advance payment shall also apply to such jagirs.
Commutation Regulations
10. Special Provision for jagirs granted for the support of service of Religious and Charitable institutions:- (1) The provisions of this Regulation shall apply so far as may be, to any jagir granted:
(a) in the name or for the support of any religious or charitable institution; or
(b) to any person for the purpose of any service or charity, such service or charity being of a public nature connected with any religious or charitable institution.
(2) The Government shall pay to the institution every year commencing from the 1st April 1950 for the service of the institution, so long as it exists:
(i) in the case mentioned in clause (a) of sub-section (1) an amount equivalent to 90 per cent of the gross basic sum referred to in Section 4; and
(ii) in the case mentioned in clause (b) of sub-section (1) an amount equivalent to 50 per cent of the gross basic sum referred to in Section 4.
The person referred to in clause (b) of sub-section (1) shall thereupon stand released of the liability to render any service or charity, but shall be entitled to receive a commutation sum as may be determined under this Regulation.
(3) The application of the amounts paid to a religious or charitable institution under sub-section (2) shall be effected in such manner as may be prescribed.
Explanation:- In this section:
(a) "Religious Institution" means any religious establishment such as temple, shrine, mosque, durga or the like with a specific location and known address which is dedicated to, or used as of right by, the general public or any community or section thereof as a place of public religious worship;
(b) "Charitable Institution" means by charitable establishment, with a specific location and known address which is dedicated to, or for the benefit of, or used as of right by, the general public or any community, or section thereof, for any pious, charitable or philanthropic purposes.
A bird's eye view of the Regulations relied on by the Government would show that from the date of publication of the Regulations in the gazette (15.08.1949), the Government shall appoint a jagir administrator for its due administration and the jagir shall be included in Diwani or in a District constituted under the Land Revenue Act. On the happening of this, no Jagir shall recover or receive any customary or other duties from any tenant or cultivator. Under Regulation 5 of the Commutation Regulations, the administrator shall determine the commutation sum for every jagir which is apportioned in accordance with Regulations 6, 7(8) of the Jagir Abolition Regulations. The Jagir Rules contain the modalities for determination and payment of commutation. There are special provisions in the Abolition Regulation, Rules made thereunder and Jagir Commutation Regulations concerning the grants made to support religious and charitable institutions. As per the proviso (b) to Section 16 of the Jagir Regulations, the distribution of the net income shall be effected as far as possible as per the wishes of the grantor and to be in consonance with the custom and usage. Rule 6 made under said Regulations contains the method of distribution of net income as contemplated under the proviso (b) to Section 16. The principle adumbrated therein is suls-e-sulsan. According to this, one half of the income shall be spent for fulfillment of the object and the remaining half would be distributed equally between the jagirdar, mutawalli or other persons entitled to perform the duties and hissedars (legal heirs of the inamdar). This is further clarified by Regulation 10(2) of the Commutation Regulations, which obliges the Government to pay 90 per cent of the gross basic sum of commutation to the institution every year commencing from 1st April, 1950 for the service of the institution. Prima facie, none of these provisions help the Advocate General in sustaining the argument that on payment of commutation, mashrut-ul-khidmat stands reversed and vests in the sovereign/Government. That being the case, the presumption that the title to the tract of land in the territory always vests in the sovereign in the absence of any claim by others (reiterated in R.Hanumaiah v State of Karnataka11) is not attracted.
The parties to the lis rely among others, the Muntakhab issued by the Government of Nizam in 1249 Fasli, the notification from the Nazim Court of Wards being No.545 dated 29.03.1956, the order dated 31.05.1957 of the Nazim-e-Atiyat and its consequential Muntakhab, dated 26.11.1958, the provisional commutation award dated 30.09.1952 and 02.06.1958 and the order of this Court in W.P.No.666 of 1959, dated 14.12.1961 to support their respective contentions. The State would like this Court to draw an inference from these documents that the grant being mashrut-ul-khidmat and there being no proven dedication, the land vested in the Government after abolition of jagirs. The Wakf Board of Dargah also rely on these documents as well as three comparatively recent documents, which are the Government Memoranda/correspondence between the Secretaries to the Government i.e., Memo dated 25.01.2007, and two letters dated 04.05.2007 and 12.06.2007 to press the submission that from the date of grant, the Manikonda land was wakf and even after abolition of jagirs and in spite of the payment of commutation amount to legal heirs and hissedars, it retained the character of being the wakf. In our considered opinion, all these documents need to be clarified and explained by whoever party relying on them. Unless a deeper probe in relation to the contemporaneous circumstances and the contextual events of the period when the ancient documents came into existence (may be by oral evidence or by other documents), it is not possible at all to countenance submission of the Advocate General that the subject land is not wakf and it was taken over by the Government on abolition of jagirs.
We may also refer to Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 (the Inams Abolition Act). The 'inam' is defined as the land held under a gift or grant made by the Nizam or by competent jagirdar with or without condition of service coupled with remission of specified land revenue. But, Section 3 abolishes all inams and vests the erstwhile inams in the State. The inamdar, the protected tenant, the permanent tenant and occupant may have to apply to Inams Tribunal (Revenue Divisional Officer) for registration as an occupant. The registration under Section 10 is prospective recognition of the title of the person. By A.P. Amendment Act, 1994 (Act No.19 of 1994), two provisos were added to Section 4 (dealing with registration of inamdars as occupants) which bar conferring of occupancy rights certificate on anybody in respect of land which is held for the benefit of charitable and religious institutions. Any such registration granted earlier is deemed to have been null and void with no effect whatsoever.
Thus, the Jagir Regulations, Commutation Regulations and Inams Abolition Act treated all the jagirs and inams held for the purpose of support of charitable and religious purposes including the wakfs differently. Those inams, in law, if proved are to be held as endowments to the charitable and religious institutions like temple or wakf, and it is very doubtful whether the Government can claim any vested right in such inams. We are not inclined to go deeper into these issues for the reasons infra. We have only considered the submissions with reference to the plain meaning of the provisions to which our attention has been invited. Further, there are also seriously contested questions as to the nature of the Nizam grant to the Dargah and the right claimed by the legal heirs of the grantee. Both the parties have various documents in their armoury, some of which are produced before this Court. All of them call for interpretation and inference subject to further clarifications.
II. Validity of Errata Notification The Wakf Board notified Dargah as consisting of about 5506 square yards (mosque, well, khankah and a house). The notification issued on 09.02.1989 under Section 5(1) of 1954 Act indisputably remains unchallenged and has become final. The impugned errata notification dated 06.04.2006 issued under Section 5(2) purports to attach another extent of about Acs.1654.32 of Manikonda village to the Dargah. In usual course of things, by reason of errata notification, the entire extent of the property notified in 1989 and 2006 is wakf property. A feeble submission is made by the State that it is only prospective. It ignores the well settled law that once errata is published, it dates back to the date of initial notification and it implies that there was something in existence which is being corrected (State of Tamil Nadu v Mahalakshmi Ammal12 and State of A.P., v Twin City Jewellers Association13). There is, however, no dispute that in law as long as a notification issued under Section 5(2) of the Wakf Act, remains in force, the property is deemed to be the wakf property. The declaration, however, is not final and it is always subject to any declaration by a competent judicial body (Sayyed Ali). In every challenge to a notification issued by the Wakf Board, the essential question would be whether the property claimed to be wakf is in fact to be so or it lacks the essential characteristics of wakf. The notification issued by the Wakf Board only strengthens such property being the wakf, and therefore, it is not possible to accept argument that a competent judicial body cannot go into the question of notification's validity. Unless and until the Wakf Board decides a particular property as wakf property, the question of issuing a notification declaring it or registering it may not arise, and therefore, there cannot be any doubt that subject to any declaration as to its invalidity, every notification issued by the Wakf Board is final and conclusive.
The State and others argue that the impugned errata notification is ultra vires. Two views are commended. First, the impugned notification is not based on any report of the Survey Commissioner, and secondly, the procedure contemplated under Sections 4 and 6 was ignored. Again with abundant caution, we advert to these issues only with reference to the provisions relied on and the rival versions in relation thereto.
Sections 4 and 5 of the Wakf Act form one group. They deal with preliminary survey of wakfs and publication of list of wakfs. The State Government inhers the power to appoint Survey Commissioners and Additional/Assistant Survey Commissioners of Wakfs. The Survey Commissioner so appointed is required to conduct enquiry and submit the report to the Government containing the particulars with regard to the number of wakfs, the nature and object of each wakf, its gross income and the expenses incurred for realization of income. While conducting enquiry, the Survey Commissioner is empowered with the powers under Code of Civil Procedure, 1908 in respect of summoning the witnesses for examination or production of documents, requisitioning the public record, issuing commissions, making local inspections etc. After receiving the report, the State Government shall forward the same to the Wakf Board, which shall publish in the official gazette the list of Sunni wakfs or Shia wakfs whether in existence at the commencement of the Wakf Act or coming into existence thereafter, to which the report relates to.
The appointment of Survey Commissioner is not one time exercise of power. Under Section 4(6) of the Wakf Act, the Government can direct the Survey Commissioner to make second or subsequent survey of the wakf properties in accordance with Section 4. While conducting enquiry, as per the explanation to sub-section (1) of Section 6, the Survey Commissioner is under obligation to give reasonable opportunity to every 'person interested'. The said phrase means 'any person who is entitled to receive any pecuniary or other benefits of the wakfs and includes any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah or khangah'.
Sections 40, 41 along with related clauses in sub-section (2) of Section 32 form another group of provisions relevant for the present discussion. Section 32 confers the power of general superintendence of all wakfs on the Wakf Board. Without prejudice to the generality of this power, sub-section (2) of Section 32 enumerates fifteen specific areas in relation to which the Wakf Board alone shall discharge the functions. Section 32(1)(h)(n) and (o) empower the Wakf Board to take measures for recovery of lost properties of any wakf; to investigate and determine the nature and extent of wakf property; to cause a survey of such wakf properties and to do all such acts as are necessary for the control, maintenance and administration of wakfs. As to how this power is to be exercised is dealt with in Section 40, which reads as under.
40. Decision if a property is wakf property:-
(1) The Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not or whether a wakf is a Sunni wakf or a Shia wakf it may, after making such inquiry as it may deem fit, decide the question.
(2) The decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the Tribunal, be final.
(3) Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the Societies Registration Act, 1860 (21 of 1860) or under any other Act, is wakf property, the Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is wakf property, call upon the trust or society, as the case may be, either to register such property under this Act as wakf property or show cause why such property should not be so registered:
Provided that in all such cases, notice of the action proposed to be taken under this sub-section shall be given to the authority by whom the trust or society had been registered.
(4) The Board shall, after duly considering such cause as may be shown in pursuance of notice issued under sub-section (3), pass such orders as it may think fit and the order so made by the Board, shall be final, unless it is revoked or modified by a Tribunal.
An analysis of the above provision would show that the Wakf Board can itself collect information regarding any wakf property which it has reason to believe to be wakf property. This power of the Wakf Board to collect information on its own is not subordinate to the power of the State Government under Section 4(1) to appoint Survey Commissioners. Sections 4 to 8 appear in Chapter II, which deals with survey of wakfs and Section 4 only speaks of "Preliminary Survey of Wakfs". Chapter V (Sections 36 to 43) deals with the registration of wakfs. The law requires that every wakf whether created before or after commencement of the Wakf Act, shall be registered at the office of the Wakf Board. Even if a wakf is not surveyed or mentioned in the report submitted by the Survey Commissioner under Section 4(3), even then there is an obligation for registration of every wakf, and as per Section 43, all the wakfs registered prior to the Wakf Act shall be deemed to have been registered thereunder. In this context, Section 40 assumes significance. Sub-section (3) thereof contains a non-abstante clause. This overrides other provisions in the Wakf Act. Notwithstanding anything contained in the other provisions of the Wakf Act, under Section 40(3) the Wakf Board may hold an enquiry and if it is satisfied that a property is a wakf property, can issue notice to the Trust or Society and then register under Section 36.
Sections 6, 7 and 83 are adjudicatory provisions applicable in the event of dispute regarding wakfs. As we will be adverting to them when we consider the relevant point, we may briefly indicate the purport of these Sections of the Wakf Act. A plain reading of Sections 6, 7 and 83(2) leaves no doubt that the question whether a particular property specified as wakf property in the list of wakfs, a wakf property or not, has to be adjudicated by the Wakf Tribunal in a suit instituted for the purpose. The question whether a property is a wakf property and whether the notification issued by the Wakf Board is final in relation to such property is always a mixed question of fact and law, and the notification can only be sustained subject to the finding of the Wakf Tribunal that such property has characteristics of wakf.
In view of the clear provisions as briefly pointed out hereinabove, it is not possible to accept the submission of the State and its supporting parties that the impugned errata notification is ultra vires. For issuing the impugned errata notification, in our opinion, it may not be necessary for the Government to appoint a second Survey Commissioner nor for him to submit a report. Section 40 is wide enough to confer such powers on the Wakf Board. Be that as it is, the CEO of the Wakf Board addressed the Survey Commissioner on 02.09.2005 requesting to furnish the copy of second survey report of the Dargah together with the details of service inam land attached to it for further follow up action. After receiving the same, the Survey Commissioner sent second survey report vide letter No.68/SCW-11/2005, dated 30.09.2005 furnishing the details of service inam lands attached to the Dargah. It may not be out of place to refer to a communication being C.A.No.70 of 2008, dated 07.05.2008 of the Survey Commissioner addressed to one Syed Sadulla under the Right to Information Act, 2005. Therein, the Survey Commissioner informed that the second survey operations in Serilingampally Mandal, Ranga Reddy District started in late 2001 and were completed in respect of 134 wakf institutions. In January, 2002, Sri Syed Shabbir Hussain, Deputy Commissioner, Survey Commissioner of Wakf conducted the survey and submitted survey reports on 08.04.2002, the said report was attested by the Mandal Revenue Officer, Serilingampally and that the original second survey report of the Dargah was taken over by the Inspector of Police, P.S., Raidurg, along with the said letter, a statement showing the list of 135 wakf institutions in Serilingampally Mandal, which was surveyed was also enclosed. Here again, this is a matter of further evidence. Prima facie, however, we are not able to countenance the submission of the State and others that the impugned errata notification is ultra vires.
III. Whether writ petitions are barred The question whether a property is a wakf property or not, has to be decided in a suit instituted in Wakf Tribunal (Section 6 of the Wakf Act). Sections 85 and 88 bar suit or other legal proceedings in respect of (i) dispute, (ii) question, (iii) other matter relating to a wakf or wakf property, or
(iv) other wakf matter which is required to be determined. Such matters are to be adjudicated by the Wakf Tribunal which shall be deemed to be a civil Court and shall have all powers of exercisable by a civil Court under it while trying the suit. The decision of the Wakf Tribunal is final. As held by the Supreme Court in Sayyed Ali, even where Wakf Board issues a notification declaring or listing the property as wakf property, that can be final only subject to the decision of the Wakf Tribunal in a suit instituted for the purpose.
Chapter VIII (Sections 83 to 95) of the Wakf Act deals with judicial proceedings. Section 83(1) confers the power on the State Government to constitute as many Tribunals as it may think for determination of (i) any dispute; (ii) any question; (iii) any other matter relating to wakf or wakf property. Any mutavalli or a person interested in a wakf or wakf property can make an application or file a suit. The limitations that operate in this area are provided by the proviso to Section 6, according to which, no suit shall lie after expiry of one year from the date of publication of list of wakfs. The powers of the Wakf Tribunal are wide enough to determine any question and as noticed supra, Section 85 bars a civil suit and if a wakf is unregistered, no suit or proceeding for the enforcement of right on behalf of the wakf can be instituted, unless such wakf is registered with the Wakf Board. In every suit or proceedings in respect of a wakf, the Wakf Board shall appear and plead as a party to the proceedings; and when a suit is instituted by or against mutavalli, the same shall not be compromised without the sanction of the Board. Thus, positively the Act requires all disputes, questions or any matters relating to wakf or wakf property to be adjudicated and resolved only by the Wakf Tribunal. Negatively, the Act bars the jurisdiction of civil courts even in relation to the notification issued thereunder although impliedly the very declaration made which is the basis for issue of notification can be subject matter of challenge before the Wakf Tribunal but not a civil Court.
The Dargah and the Wakf Board highlight the above legal position. They contend that the writ petitions are barred in view of the provisions and rely on three Division Bench decisions of this Court, a Division Bench decision of the Madras High Court and three decisions of the Supreme Court. Before considering these precedents arising under Muslim Law of Wakfs, we may briefly refer to the general principles and precedents in this regard.
The Constitution confers judicial review power on the High Court and the Supreme Court (Articles 13, 32, 226 and 227). It cannot be curtailed and the law treats it as a basic feature of the Constitution. Nonetheless, the law in England and post Constitution law in India laid down by the superior Courts conclude that even though it is essential feature of the Constitution, the Courts must exercise self-imposed limitations while granting judicial review. The availability of adequate and efficacious alternative remedy, non- reviewability, non-justiciability, complicated questions of fact requiring evidence are some such limitations. These principles also have exceptions. In appropriate cases, the judicial review Court can always accept applications and petitions for judicial review ignoring the self-imposed limitations. The power of judicial review includes the issuing writs in the nature of certiorari, habeas corpus, mandamus, prohibition and quo warranto, as well as directions and orders. These are writs, which were issued at the discretion of the King's Courts in England to check excesses in the exercise of power by servants of the kingdom. The issue of writs; nay the exercise of judicial review power is barred. What is the justification for denying constitutional remedy?
Clive Lewis in 'Judicial Remedies in Public Law' (Sweet & Maxwell 2004, at pp.410), explains "the rationale for exhaustion of alternative remedies' as follows.
A two-fold justification has been put forward. First, that where Parliament has provided for a statutory appeals procedure, it is not for the courts to usurp the functions of the appellate body. The principle applies equally to bodies not created by statute which have their own appellate system. Secondly, the public interest dictates that judicial review should be exercised speedily, and to that end it is necessary to limit the number of cases in which judicial review is used. More generally, the courts now encourage parties to resolve disputes without resorting to the expense of litigation. To these reasons can be added the additional expertise that the appellate bodies possess. In tax cases, for example, the appellate body, the General or Special Commissioners, have wide experience of the complex and detailed tax legislation. In employment cases, for example, the system of employment and Employment Appeal tribunals may be better equipped to deal with industrial issues than the High Court. In the financial services field, specialist procedures and a specialist tribunal have been established to deal with certain matters. Similarly, where there is a further appeal to the courts, this may be to a division of the High Court particularly familiar with the area in question, as in tax cases, where the appeal is heard in the Chancery Division not the Queen's Bench Division.
The principle that writ would not lie if there is an effective and efficacious alternative remedy, has mainly four exceptions. These are (i) When Constitutional validity of the statute is challenged (K.S.Venkataraman and Company (P) Limited v State of Madras14 and Dhulabhai v State of Madhya Pradesh15);
(ii) Where the impugned action is in violation of fundamental right especially under Articles 14 and 19(1)(a) or (g) of Constitution (Champalal Binani v The Commissioner of Income Tax, West Bengal16); (iii) Where the impugned order/action is in breach of natural justice (Institute of Chartered Accountants of India v L.K.Ratna17); and (iv) When challenge is to the action which is patently erroneous and ex facie without jurisdiction (Champalal Binani and Whirlpool Corporation v Registrar of Trade Marks, Mumbai18). In addition to these, if a matter requires technical knowledge, which is available in the statutory appellate forum, ordinarily, the High Court would not be inclined to exercise discretion under Article 226 of Constitution of India. In C.A.Abraham v Income Tax Officer19, the appellant along with another was partner in M/s.M.P.Thomas and Company engaged in food grains business. The firm submitted Returns to Income Tax Officer (ITO). On the ground that the firm was carrying transactions in fictitious names, and had suppressed income for AY 1948-1949, show cause notice was issued for imposing penalty under Section 28 of Income Tax Act, 1922. Explanation was submitted. ITO passed orders imposing penalty for AYs 1950-1951 and 1951-1952. Appeals were dismissed by the appellate authority. The same was assailed in Certiorari proceedings before the Kerala High Court. The Court rejected relying on a Judgment of the A.P.High Court in Mareddi Krishna Reddy v Income Tax Officer, Tenali20. In Appeal with Certificate of High Court, the Supreme Court considered two questions, namely, whether High Court could have entertained a writ petition ignoring alternative remedy provided by the Act and whether the provisions imposing penalty can be interpreted by pointing out deficiencies. On the first question, it was held that, "assessee cannot abandon to resort to machinery provided under the Act and directly invoke remedy under Article 226 of Constitution of India".
In Champalal Binani, the Supreme Court reiterated the principle holding that when a statute provides a complete and self-contained machinery for redressal of grievances, no party can be allowed to invoke the extraordinary remedy under Article 226 of Constitution of India. The relevant observations are as follows (para 5).
We deem it necessary once more to emphasize that the Income Tax Act provides a complete and self-contained machinery for obtaining relief against improper action taken by the departmental authorities, and normally the party feeling himself aggrieved by such action cannot be permitted to refuse to have recourse to that machinery and to approach the High Court directly against the action. ... A writ of certiorari is discretionary; it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an Authority under the Income Tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition for a writ. Where the aggrieved party has an alternative remedy the High Court would be slow to entertain a petition challenging an order of a taxing authority, which is ex facie with jurisdiction. A petition for a writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises question of jurisdiction or of infringement of fundamental rights of the petitioner.
(emphasis supplied) When there are serious questions of disputed facts, this Court need not exercise jurisdiction under Article 226 of the Constitution of India. In Jai Singh v Union of India21, the apex Court observed thus.
The High court dismissed the writ petition on the ground that it involved determination of disputed questions of fact. It was also observed that the High court should not in exercise of its extraordinary jurisdiction grant relief to the appellant when he had an alternative remedy. After hearing Mr. Sobhagmal Jain on behalf of the appellant, we see no cogent ground to take a view different from that taken by the High court. There cannot, in our opinion, be any doubt on the point that the extent of purity of the gypsum won by the appellant is a question of fact. It has also been brought to our notice that after the dismissal of the writ petition by the High court, the appellant has filed a suit, in which he has agitated the same question which is the subject- matter of the writ petition. In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time.
In a recent judgment, in Raj Kumar Shivhare v Directorate of Enforcement22, the Supreme Court observed as under (paras 30 and 31). The argument that writ jurisdiction of the High Court under Article 226 of the Constitution is a basic feature of the Constitution and cannot be ousted by parliamentary legislation is far too fundamental to be questioned especially after the judgment of the Constitution Bench of this Court in L.Chandra Kumar v Union of India ((1997) 3 SCC 261). However, that does not answer the question of maintainability of a writ petition which seeks to impugn an order declining dispensation of pre-deposit of penalty by the Appellate Tribunal. ... When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction.
In United Bank of India v Satyawati Tondon23, the Supreme Court again recalled the settled law observing thus:
Unfortunately, the high Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must enhaust the remedies available under the relevant statute. (emphasis supplied) The position in English Courts is no different. In R v IRC Ex parte Preston24, Lord Scarman summed up the position thus:
My fourth proposition is that a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. When Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision. In the first part of his speech my noble and learned friend, Lord Templeman, has set out in detail the ample appeal procedures available to a taxpayer aggrieved by a decision of the commissioners to exercise their powers and duties under Part XVII of the Act of 1970 to counteract a tax advantage alleged to have been obtained by him. ... But cases for judicial review can arise even where appeal procedures are provided by Parliament. The present case illustrates the circumstances in which it would be appropriate to subject a decision of the commissioners to judicial review. I accept that the court cannot in the absence of special circumstances decide by way of judicial review to be unfair that which the commissioners by taking action against the taxpayer have determined to be fair.
(emphasis supplied) Administrative Law in the USA follows the same pattern. Explicit and implicit legislative preclusions of judicial review are adhered to. Absolute preclusions of judicial review, however, are not presumed unless the Congress specifically bars review, whereas the bar of review to a limited extent is readily inferred. In such cases, review may be postponed to enable the executive agency to exercise discretion at various levels as willed by the Congress. In United States v Erika Inc.,25 , the U.S., Supreme Court ruled that, "judicial review may be shaped or postponed, to allow the agencies to filter a myriad of fact-based claims, such as Social Security claims, that are suited to resolution by specialist agencies and special procedures". In National Association of Home Health Agencies v Schweiker26, the U.S. Supreme Court held that the legislative policy of placing limitations is to prevent claimants, who seek judicial review of their claims for benefits, from bypassing the specific procedural requirements provided by Congress in various Acts, and the policy underlying this limitation to judicial review was avoided bringing the Courts into complex interplay between various competing concerns, the resolution of which depends on the facts.
Adjudication of wakf disputes We will now refer to the precedents on the question of bar of writ petition when disputes are raised relating to wakfs.
In M.Bikshapathi v Government of Andhra Pradesh27, a Division Bench of this Court (to which VVSRJ was a Member), held that whatever be the dispute - the nature of the property or whether or not it is a wakf; the person aggrieved has to seek remedy before the Wakf Tribunal and that such questions cannot be decided in a summary proceedings in a writ petition. The relevant observations are as follows.
... the jurisdiction of the Wakf Tribunal cannot be limited by reading Section 6 alone providing for the decision to determine the nature of the wakf property i.e., to the effect whether it is a wakf property or not; whether it is a Shia Wakf or Sunni Wakf and who is the interested person who can institute a suit. Section 6 further specifies that the person interested shall, in relation to the property, include every person who though not interested in the wakf concerned, is interested in such property. We are of the considered view that reading both the sections together and permitting them to operate in their totality, it is within the jurisdiction of the Tribunal to determine whether the wakf property has been rightly leased or wrongly leased or any questions relating to wakf property.
In Syed Muneer v Chief Executive Officer, A.P.State Wakf Board28, another Division Bench of this Court held that even when a person contends that the property which is subject matter of an order under Section 54 of the Wakf Act, is not wakf property or that it is not registered as such, the question can be decided by the Wakf Tribunal. Allauddin Charities and Zakath Wakf v Hameed Ali29 followed M.Bikshapathi, in summorising the law as below. Under sub-section (5) of Section 83, the Tribunal constituted under sub-section (1) of Section 83 shall be deemed to be a civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure while trying a suit or executing a decree or order. The jurisdiction of the Civil Court is specifically barred under Section 85 of the Act. Therefore, when the Tribunal has been conferred with the power to determine any dispute, question or other matter relating to a Wakf or Wakf property under the Act and acts as a Civil Court for all purposes, this Court, in exercise of the jurisdiction under Article 226 of the Constitution, cannot permit a party to bypass such statutory remedy and assign itself the role of statutory authority or Tribunal by dealing with the disputed questions of fact or title. It is only after the issue or dispute is determined by the Tribunal at the first instance, the High Court, in exercise of the power under the proviso to sub-section (9) of Section 83 of the Act gets jurisdiction and can go into the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order it may think fit.
(emphasis supplied) In Salam Khan v Tamil Nadu Wakf Board30, a Division Bench of Madras High Court held that the Wakf Tribunal under Section 83 has vast powers to decide "any dispute, question or other matters relating to a Wakf or Wakf property"
meaning any dispute or matter relating to the property of the Wakf as defined under the Wakf Act. It was further held therein that "as long as an alternative remedy exists under Section 83 of the Wakf Act, a writ petition under Article 226 of the Constitution of India is not maintainable. A Wakf Tribunal has all the powers of a civil Court under CPC an therefore, it has powers under Order XXXIX Rules 1, 2 and 2A of CPC to grant temporary injunctions and enforce such injunctions". It was also held that the Act has retrospective effect and Wakf Tribunal can adjudicate any dispute that might have arisen before the commencement of the Wakf Act.
Board of Muslim Wakfs v Smt Hadi Begum31 is a case where Supreme Court considered the jurisdiction of the High Court under Article 226 of the Constitution to entertain the challenge to the notification issued under Section 5(2) of the 1954 Wakf Act. The following facts in this case - though not exactly similar - are comparable with the background facts in this case. One Nawab Kallan Khan of Jaipur received a generous grant in 1869 from the Ruler of Jaipur. He constructed makbara in the memory of his wife in the land as well as the land he bought. He and his three sons were buried in the place and a mosque was also constructed later. In 1944, the Government statedly acquired the land and Urban Improvement Board initiated steps to sell it by dividing into plots. This was assailed in a writ petition by person claiming to be in possession. Having found that compensation was not paid to the land owners, the High Court allowed the writ petition in 1957 holding that the land did not vest in the State even after acquisition proceedings.
After coming into force of 1954 Wakf Act, a self-styled wakf committee sought registration of the mosque and makbara as wakf. The Commissioner of Wakfs called for evidence and pending enquiry passed order directing the tenants not to pay any rents to them. This order was assailed in the writ petition. During its pendency, the Commissioner issued order holding that the mosque and makbara and graveyard is a wakf property. Its validity was challenged in another writ petition. When both the writ petitions were pending, Board of Muslim Wakfs issued a list of wakf properties under Section 5(2) of the 1954 Act in December, 1965 showing the makbara and mosque as item Nos.360 and 361 in the list. This was challenged in another writ petition seeking an order to expunge the included items from the list of wakfs. Simultaneously there were also land acquisition proceedings in relation to disputed land with regard to the apportionment of compensation. These disputes were referred to civil Court under Sections 18 and 31(2) of the Jaipur Land Acquisition Act.
The notification of the Board of Muslim Wakfs was mainly challenged on the ground that the Commissioner had no jurisdiction to go into the question whether a particular property is a wakf property or not and that such a question has to be determined only by instituting a suit in a civil Court. The learned single Judge allowed the writ petitions and set aside the July 1962 Order of the Commissioner including the disputed property in the list of wakfs further declaring that such inclusion in the gazette is not binding on the petitioners therein. This was confirmed by the Division Bench. In the appeals, before the Supreme Court, it was urged that the right, title and interest of non-muslim person who is in possession of the property is not put in jeopardy simply because that the property is included in the list of wakfs under Section 5(2) of the 1954 Act and that the wakfs commissioner has no jurisdiction to go into the question whether the entire land is wakf property or not and that the only remedy available against the publication of list of wakfs by the Board would be to institute a suit in a civil Court. Other issues were also raised. The apex Court accepted the plea of the Board of Wakfs and held that, "(i) when the wakfs commissioner was conducting enquiry and the property had not vested in the State Government, it was not incumbent to issue any notice to the State Government in the enquiry; and (ii) a notification issued by the Board of Wakfs can be challenged on limited grounds of want of jurisdiction with the Commissioner. The relevant observations are as follows.
At this stage, it may be mentioned that the challenge to the order of the Wakfs Commissioner passed under Section 4 of the Act and the lists of wakf properties under Section 5(2) of the Act was made in proceedings under Article 226 of the Constitution. In view of the fact that a civil suit is maintainable to challenge the list published under Section 5(2), the scope of challenge to the said list in proceedings under Article 226 of the Constitution would be confined to cases where the order of the Act suffers from want of jurisdiction and since the list issued under Section 5(2) is based on the order of the Wakfs Commissioner, the lack of jurisdiction in the Wakfs Commissioner to make the order would invalidate the list. ... ... Since we are of the view that at the time when the Wakfs Commissioner was conducting the enquiry the property had not vested in the State Government under the land acquisition proceedings, it was not incumbent upon the Wakfs Commissioner to issue any notice to the State Government in those proceedings and the said proceedings could not be held to have been vitiated on that account.
(emphasis supplied) Ramesh Gobindram v Sugra Humayun Mirza Wakf32 is relied on by the State and its supporters as well as the Wakf Board and the Dargah in support of the respective contentions on the exclusion of writ jurisdiction. Essentially the question which fell for consideration before the apex Court was whether or not the Wakf Tribunal can entertain and adjudicate upon a dispute regarding the eviction of a tenant holding wakf property. On the holding that the Wakf Tribunal assumed jurisdiction wrongly in deciding the dispute regarding eviction of the tenants of the wakf property, the Court allowed the appeals which arose out of three revisions decided by the High Court of Andhra Pradesh under Section 83(9). As the case has considerable relevance to the issue herein, we may refer to in some detail.
Ramesh Gobindram and two others were tenants occupying different items of wakf property. Suits were filed by Sugra Humayun Mirza Wakf before the Wakf Tribunal for eviction, which were allowed. Gobindram and others preferred revisions before the High Court and they were dismissed confirming the order of the Tribunal. Before the Supreme Court, the main issue was whether the Wakf Tribunal has jurisdiction over the subject matter. The Supreme Court referred to T.Shivalingam v A.P.Wakf Tribunal33, P.Rama Rao v High Court of A.P.,34, Jai Bharat Cooperative Housing Society Limited v A.P.State Wakf Board35 and Syed Muneer which broadly took the view that under Section 83 of the Wakf Act, it is competent for the Wakf Tribunal to entertain and adjudicate upon all kinds of disputes so long as the same relates to the wakf property. There was also other narrow view in St.Gregorious Orthodox Cathedral v Aga Ali Asgar Wakf36, Salem Mohammedpura Parimala Sunnath Jammth Masjid Committee v P.A.Kareem37, Suresh Kumar v Managing Committee and Abdul Kadar v Masjid Juma Darwaja38 to the effect that if the dispute is not regarding the nature of the property, it is a civil dispute not excluded from the civil Court jurisdiction. Considering the background history of wakf legislation, the Supreme Court opined that if finality is attached to the orders passed by the Wakf Tribunal, the Court has to see whether the Wakf Tribunal has power to grant reliefs which the civil Court would normally grant in suits filed before them and if the answer is negative, the exclusion of civil Court's jurisdiction would not be ordinarily inferred. For this purpose, reliance was placed on Pabbojan Tea Company Limited v Commissioner39, Dhulabhai v State of M.P.40, State of T.N v Ramalinga Samigal Madam41, Mafatlal Industries Limited v Union of India42, State of A.P., v Manjeti Laxmi Kantha Rao43, Dhruv Green Field Ltd v Hukam Singh44, Dwarka Prasad Agarwal v Ramesh Chander Agarwal45, Ramesh Chand Ardawatiya v Anil Panjwani46 and Rajasthan SRTC v Bal Mukund Bairwa(2)47.
After referring to Sections 6, 7, 33, 47, 48, 83 and 85 of the Wakf Act, their Lordships held that, "a suit seeking eviction of a tenant from wakf property could be filed only before the civil Court and not before the Wakf Tribunal". It is beneficial to excerpt the conclusion (para 28 of SCC) which reads as under.
Section 85 of the Act clearly bars jurisdiction of the civil courts to entertain any suit or proceedings in relation to orders passed by or proceedings that may be commenced before the Tribunal. It follows that although Section 85 is wider than what is contained in Sections 6 and 7 of the Act, the exclusion of jurisdiction of the civil courts even under Section 85 is not absolute. It is limited only to matters that are required by the Act to be determined by a Tribunal. So long as the dispute or question raised before the civil Court does not fall within the four corners of the powers vested in the Tribunal, the jurisdiction of the former to entertain a suit or proceedings in relation to any such question cannot be said to be barred.
The latest relevant decision of the Supreme Court in Board of Wakf, West Bengal v Anis Famita Begum48 reiterates the above law. In this, Shahzadi Begum executed registered deed of wakf in 1936 for the benefit of the wakifa, her family and descendants and partly for pious and religious purposes earmarking 75% of the income for Wakf-al-al-aulad and 25% for wakf. The division of property was subject matter of a suit No.488 of 1999. The learned single Judge held that division of the property was not made in accordance with the Wakf Deed and that 1995 Wakf Act was applicable for the portion earmarked for Wakf-al-al-aulad. The Division Bench reversed and in appeal, the Supreme Court was addressed on the question of the exclusivity of Wakf Tribunal's jurisdiction and bar of the suit before the High Court. The apex Court while referring to Ramesh Gobindram, held that it is only "the Wakf Tribunal constituted under Section 83, which has jurisdiction in all matters pertaining to wakfs, and that any dispute pertaining to wakf should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India". "Even if no order had been passed, any person aggrieved can approach the Wakf Tribunal because Sections 83(1) and 84 of the Act do not find the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act". Further, it was held that, "a party aggrieved by the decision of the Wakf Tribunal can approach the High Court under the proviso to Section 83(9) which makes the intention of the Parliament clear that the party who wishes to raise any dispute or matter relating to wakf or wakf property has to first approach the Wakf Tribunal before approaching the Court". The relevant passages are as follows.
In our opinion, all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India. ... ... Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a wakf or wakf property. The words "any dispute, question or other matters relating to a Wakf or Wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word "Wakf" has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.
(emphasis supplied) In view of the binding precedents of the Supreme Court directly on the point as to the bar of writ petitions in relation to dispute, question or any matter relating to wakf in view of Sections 6, 7, 83 and 85 and also the power of the Wakf Board to cause registration of wakf or to amend registration of the wakfs under Section 41, we have no hesitation to hold that this Court cannot entertain writ petitions filed by the State and others to whom either the government or the APIIC allotted portions of Manikonda lands. To avoid adding to the length of this judgment, it not necessary to refer to various other judgments referred to by the counsel for the Wakf Board on the question of maintainability of writ petition. We are also not impressed with the submission of the Advocate General that the issue raised in these writ petitions does not involve any disputed question of fact or the issue raised in these writ petitions is beyond the purview of jurisdiction of Wakf Tribunal. In this connection, we may refer to the following averments from the counter affidavit filed on behalf of M/s.Lanco Hills Technology Private Limited (the petitioner in W.P.No.4515 of 2008) wherein it is clearly admitted that the issues raised in these writ petitions cannot be adjudicated in writ proceedings and it is only the Wakf Tribunal which is vested with such powers. The relevant portion of the counter affidavit reads as under.
It is submitted that the writ petition filed by the petitioner and the interim relief that is being sought against this respondent cannot be granted by this Hon'ble Court as the relief of the nature which is being claimed by the petitioner can be granted by the Special Tribunal constituted under Section 83 of the Wakf Act. It is submitted that it is now well settled by a catena of judgments that Wakf Act is a complete code itself providing for various aspects relating to wakf and wakf properties. Further under Section 83, the decision of the Wakf Tribunal is final and no appeal lies against such decision. Proviso to Section 83(9) confers a right on the aggrieved party to seek redress before the Hon'ble High Court by way of an application (under Article 227 of the Constitution of India). It is submitted that a natural corollary of the scheme of the Wakf Act is that this Hon'ble Court cannot and would not decide the issues which otherwise fall within the jurisdiction of the primary forum i.e., the Wakf Tribunal under Section 83 especially when disputed questions of fact relating to the title of immovable property are involved.
In view of the above, it is not possible to countenance the submission of the learned Advocate General or those supporting him that the writ petitions are maintainable.
Insofar as the pro bono publico writ petitions being W.P.Nos.17192, 20372 and 20614 of 2007 are concerned, we are of considered opinion that when the suit filed by the Dargah and the suit filed by a person interested are pending before the Wakf Tribunal, it would not be proper to dwell into the merits of the case, which might have the effect of rendering the remedy before the Statutory Tribunal ineffective. Therefore, we give liberty to these persons acting pro bono publico to approach the Wakf Tribunal and get impleaded in the pending cases to plead their case before the Wakf Tribunal.
Before we conclude and part with these cases, we make it abundantly clear that what all the prima facie observations made either as supporting the reasons or as stray observations while considering a document or documents, are intended only for the purpose of disposal of these writ petitions. The Wakf Tribunal, needless to mention, shall independently decide all the issues in the matters before it without in any manner influenced by the observations and conclusions in this order.
In the result, W.P.Nos.17192, 20372 and 20614 of 2007 are disposed of subject to observations as above. W.P.Nos.6148, 23578, 28112 of 2007 and 4515 of 2008 shall stand dismissed with costs.
______________ (V.V.S.RAO,J) ____________________ (R.KANTHA RAO, J) 03.04.2012