Smt.Amina Bee Died vs Syed Anwar Hussain on 28 July, 2025

[Cites 17, Cited by 0]

Telangana High Court

Smt.Amina Bee Died vs Syed Anwar Hussain on 28 July, 2025

Bench: T. Vinod Kumar

              THE HON'BLE SRI JUSTICE T. VINOD KUMAR

 W.P.Nos.20922 of 2009 & 30132 of 2010 and C.R.P.No.4191 of 2010

COMMON ORDER:

Since the issue involved in both the Writ Petitions is one and the same and the issue involved in the Civil Revision Petition is also integrally connected to the issue under consideration in the Writ Petitions, all the three cases, viz., WPs and CRP, are being disposed of by this common order.

W.P.No.20922 of 2009

2. The petitioner claims of he having purchased land to an extent of Acs.3.08 guntas in Sy.No.797/A, an extent of Ac.1.07 guntas in Sy.No.797/AA, in all admeasuring Acs.4.15 guntas, from its original owners, Sri Raza Ali Shah S/o Maroof Ali Shah and Farath Ali Shah s/o Maroof Ali Shah, under a registered sale deed dt.09.01.2001 for valuable consideration and on purchase of the aforesaid land, the same was mutated on to his name in revenue records; and that he was also issued with pattadar pass book and title deeds by the concerned authorities.

3. It is the further case of the petitioner that thereafter, he had sold land to an extent of Ac.1.15 guntas back to his vendors through a registered sale deed and is in possession of land to an extent of Acs.3.00 guntas; that the petitioner's vendors were owners and occupiers of land which is a Inam land covered under Andhra Pradesh (Telangana Area) 2 Abolition of Inams Act, 1955 (for short, 'the Inams Act'); that the petitioner's vendors were granted Occupancy Rights Certificate (ORC) by the competent authority, vide proceedings dt.17.07.1999 under the relevant provisions of the Inams Act, after conducting enquiry; and that there is no dispute with regard to nature of the land and rights of the petitioner's vendors over the land.

4. It is the further case of the petitioner that having purchased the land initially to an extent of Acs.4.15 guntas and thereafter, having sold away land to an extent of Ac.1.15 guntas, is in possession of the remaining extent of land to an extent of Acs.3.00 guntas; and that pursuant to the notification issued by Bharat Petroleum Corporation Limited (BPCL) for opening of a retail petroleum outlet at Kodangal Town and Village, he had applied for the dealership; and that the petitioner's application was accepted, and letter of intent was issued by BPCL, vide its letter dt.28.03.2008.

5. It is the further case of the petitioner that on BPCL issuing letter of intent, he had approached the concerned authorities, i.e. Revenue Divisional Officer, Narayanpet (RDO), and the concerned police authorities and obtained No Objection Certificate (NOC) for establishing a petroleum retail; that after obtaining necessary permissions/sanctions from the authorities concerned for setting up of retail petroleum outlet and also having applied for conversion of the said land from agriculture to non- 3 agriculture, on the petitioner undertaking steps to clean the area for the purpose of setting up of petrol pump, some persons styling themselves as Members of local Masjid Committee are trying to interfere with the petitioner's peaceful possession and enjoyment over the land admeasuring Acs.3.00 guntas by claiming that the property belongs to Wakf Board; that on the third parties creating obstacles, the petitioner had approached the competent Court of Civil jurisdiction by filing a suit for injunction, vide O.S.No.20 of 2009, and obtained ad interim injunction in I.A.No.188 of 2009 in O.S.No.20 of 2009; and that the said order of injunction is subsisting as of date.

6. It is the further case of the petitioner that on his peaceful possession and enjoyment being obstructed by the persons styling themselves as Members of the local Masjid Committee and also having regard to the stand of the Wakf Board in the suit, vide O.S.No.20 of 2009, he made enquiries and learnt that the 2nd respondent herein had notified the land in Sy.No.797 of Kodangal Village and published the same in Gazette Settlement Part-II of A.P.Gazette No.4(A), dt.24.01.2002 along with other survey numbers and also other properties of the entire erstwhile Taluq of Kodangal as wakf property.

7. It is also the case of the petitioner that the land in Sy.No.797 is not the wakf property either by usage or by registration or by gift as contemplated under the provisions of the Wakf Act; that the subject lands 4 are nothing to do with any mosque or any other religious institution; that the land purchased by the petitioner is an agricultural inam land belonging to the petitioner's vendors, who inherited from their father Maroof Ali Shah; that the entire revenue records from Khasra 1954 onwards, the property had shown as Inam land; and that the petitioner's vendors were conferred with the ownership rights under the provisions of the Inams Act.

8. It is also contended by the petitioner that the impugned notification issued by the 2nd respondent under Section 4(3) and 5(2) of the Wakf Act is totally illegal, arbitrary and against the principles of natural justice. W.P.No.30132 of 2010

9. The case of the petitioners herein in brief is that they are the owners, title holders and pattadars of various extents of agricultural land in Sy.Nos.289, 290, 443, 444, 594, 597, 735 to 740, 765 to 769, 797, 800, 835 and 836 and are in possession and enjoyment of the same from their fore-fathers; that the aforesaid land is shown as Inam land in the revenue records; that after abolition of inams under the Inams Act, the petitioners have made an application to the competent authority under the provisions of the Inams Act to grant ORC; and that the competent authority, after conducting thorough enquiry, had issued proceedings dt.17.07.1999 conferring rights under the Inams Act and thereafter, the petitioners were in possession and enjoyment of the same and their right over the said land had been confirmed being in possession of the same. 5

10. It is the further case of the petitioners that out of the total extent of land held by them, to meet family necessities they sold away some extent of land to the third parties for a valuable consideration and the third parties who had purchased the said lands are in occupation of the same.

11. It is also the case of the petitioners that as per the entire records and the Khasra Pahani for the year 1954, the lands have described as Inam land and held in possession of the petitioners' fore-fathers; that such lands were never been shown as gift property or wakf property; that the said lands were not connected to with any mosque or any other religious institutions and are agricultural lands belonging to the petitioners inherited from their fore-fathers; and that the petitioners' fore-fathers were neither gifted nor endowed the lands or any part thereof in favour of the 2nd respondent at any point of time.

12. Petitioners further contend that to their surprise, a notification was issued and published in the gazette of Andhra Pradesh Supplement to Part-II No.4A dt.24.01.2002 indicating all the lands of the petitioners covered by ORC granted in their favour are wakf properties under Section 4(3) and 5(2) of the Wakf Act.

13. Petitioners further contend that the action of the 2nd respondent on the basis of the aforesaid notification is totally illegal, arbitrary and against 6 the principles of natural justice, as no enquiry was conducted by the Wakf Board as contemplated under the Wakf Act and the Rules made thereunder. Hence, the petitioners are questioning the issuance of the gazette notification dt.24.01.2002.

C.R.P.No.4191 of 2010

14. The petitioners herein are same as in W.P.No.30132 of 2010.

15. Shorn of unnecessary details, the case of the petitioners in this Civil Revision Petition in brief is that respondent Nos.1 and 2 styling themselves as President and Vice-President of the local Jama Masjid Committee, filed an appeal before the Joint Collector under Section 24(1) of the Inams Act, questioning grant of ORC in their favour, on the ground that the land, in respect of which ORC was granted to the petitioners, is a wakf property and any alienation thereof is null and void; that respondent Nos.1 and 2 had relied upon the gazette notification dt.24.01.2002, wherein it was notified that the properties mentioned therein belong to Muslim community in the entire erstwhile Taluq of Kodangal; and that the Joint Collector, without appreciating the records in proper perspective, allowed the appeal setting aside the ORC granted in their favour on 17.07.1999 after a lapse of 11 years and remanded the matter back to the RDO for conducting fresh enquiry. Challenging the said order of the Joint Collector, dt.22.05.2010, the present Civil Revision Petition is filed. 7

16. The 2nd respondent - Wakf Board had filed separate counter- affidavits in W.P.No.20922 of 2009 and 30132 of 2010.

17. By the counter-affidavit filed in W.P.No.20922 of 2009 by the 2nd respondent, it is contended that the lands in Sy.No.797 admeasuring Acs.5.15 guntas situated at Kodangal Village along with lands in other survey numbers, in all totaling to an extent of Acs.95.00 guntas were covered under Survey Commissioner's Report at Serial No.7 of Kodangal Teluka, Mahaboobnagar District and got published in Andhra Pradesh Gazettee No.4-A dt.24.01.2002 at Sl.No.27078; that the entire survey number 797 graves of Muslim persons are there from time immemorial; that the lands were shown as Fakir Takia lands in Khasra Pahani 1954-55; that the lands were surveyed by the Survey Commissioner under Section 4(3) of the Wakf Act and submitted report to the Wakf Board with a copy forwarded to the State Government under Section 5(1) of the Wakf Act; and that the State Government, after examining the report as forwarded by the Wakf Board, published the same under Section 5(2) of the Wakf Act in A.P. Gazette.

18. On behalf of the 2nd respondent by the counter-affidavit, it is further contended that the said wakf lands are under the Dargah Hazarath Mehar Pasha Saheb with graveyard under the Towliath of the then notified Mutawalli - Sri Maroof Ali Shah; and that the aforesaid lands were previously enjoyed by Mehar Ali Shah and Maroof Ali shah; that the entire 8 land in Sy.No.797 was in use as graveyard for burial of Muslim people from Kodangal Village; that the vendors of the petitioners - Raja Ali Shah and Farhath Ali Shah are the descendants of Maroof Ali Shah being the sons; and that Maroof Ali obtained ORC from the Revenue Divisional Officer, vide orders dt.17.07.1999; and that the petitioner herein had wrongfully acquired title to the subject land being claimed by him from the descendants of the notified Mutawalli under the guise of the ORCs purported to have been issued in favour of the descendants of the notified Mutawalli Sri Maroof Ali Shah, viz., Sri Raja Ali Shah and Sri Farhat Ali Shah.

19. By the counter-affidavit, it is also contended that since, the very title of the petitioner's vendors being defective, the petitioner cannot claim effective title over the subject land; that thus, the claim of the petitioner that the revenue records, viz., ROR and pahani and also pass books and title deeds, issued in favour of the petitioner are all null and void; that the ORC issued in favour of the petitioner was challenged in appeal before the Joint Collector and the Joint Collector by his order was pleased to set aside the said ORC issued by the RDO, and directed the RDO, Narayanpet, to conduct de novo enquiry with reference to the material available on record after providing adequate opportunity to all the interested persons, including the Wakf Board and pass appropriate orders on merits. 9

20. By the counter-affidavit, the 2nd respondent further contended that mere entries in revenue records do not establish title; that the entries in the revenue records are only meant for collection of revenue; that the subject land never belonged to the vendors of the petitioner having inherited from his deceased father late Maroof Ali Shah, who was the notified Mutawalli and is the custodian of the wakf property, and as such, does not have any right to alienate the Wakf property as laid down under Section 51 of the Wakf Act.

21. The 2nd respondent by the counter-affidavit contended that the descendants of the notified Mutawalli fraudulently obtained ORC from the RDO on 17.07.1999 without issuing any notice to the Wakf Board and the said order of the RDO was subsequently set aside by the Joint Collector; that as per Section 4 of the Inams Act (Amended Act 19/94), no person is entitled for getting his name recorded as pattedar on wakf properties and even any such pattas were registered, the same should be treated as null and void.

22. The 2nd respondent by the counter-affidavit also contended that mere obtaining of permissions by the petitioner from different authorities for establishment of petrol pump by obtaining dealership from BPCL, are liable to be cancelled, as such permission were obtained without knowledge of the 2nd respondent.

23. By the counter-affidavit, it is contended that though the petitioner is stated to have filed a suit, vide O.S.No.20 of 2009, seeking perpetual injunction against the persons who had styled themselves as Members of local Masjid Committee, however, for the reasons best known, the petitioner did not choose to make the 2nd respondent a party to the said suit, as such, the orders purported to have been passed by the competent Civil Court have no effect on the 2nd respondent.

24. By the counter-affidavit, it is further contended that since, gazette notification was issued on 24.01.2002 notifying the subject land as wakf land, if any challenge is to be laid, the same ought to have been done within a period of one year from the date of publication of gazette notification and in the absence of any challenge, the petitioner had forfeited his right to challenge the gazette notification issued under Section 6(1) of the Wakf Act and thus, the declaration of the subject property as wakf property has become final and is subsisting, and as such, the petitioner cannot challenge the same at this juncture.

25. By the counter-affidavit, it is also contended by the 2nd respondent that the petitioner ought to have availed the remedy provided under Section 83 of the Wakf Act by filing a suit instead of seeking adjudication in a Writ Petition filed under Article 226 of the Constitution of India, being a summary proceeding. The 2nd respondent by contending as above, seeks for dismissal of the Writ Petition.

26. By the counter-affidavit filed on behalf of the 2nd respondent in W.P.No.30132 of 2010, it is claimed that the lands in Sy.No.989, 390, 443, 444, 494, 597, 735 to 738, 740, 765 to 768, 797 to 799, 835 and 836 in all admeasuring Acs.95.00 guntas are notified as wakf properties and got published in the Andhra Pradesh Gazette No.4-A dt.24.01.2002; that the legal representatives of the Mutawalli had obtained ORC in their favour from the RDO, Narayanpet, dt.17.07.1999; that a portion of Takiya land bearing Sy.No.797 to Sri Punnam Chand Lahoti, the petitioner in W.P.No.20922 of 2009; that as per the Wakf Act, no one can sell or mortgage or transfer or gift any wakf property without prior permission of the Wakf Board, as the property vests with the respective institution and its rights cannot be confirmed as ownership rights to any individuals; that revenue and registration authorities of the District were requested not to entertain any applications of Inamdars/Mutawalli or any persons unconcerned for issuance of pattedar passbooks in respect of Wakf inam lands; and that the Tahsildars were requested not to entertain any inams abolition proposal in respect of wakf land; and that the Tahsildars were requested to furnish information of wakf properties as per the revenue records duly reconciling with the list of wakf properties; that since, the valuable wakf lands in the State were being grabbed, the 1st respondent had constituted a Task Force Committee at District Level to keep a special watch over the eviction of encroachers and prevention of encroachments 12 of wakf lands; that the Survey Commissioner of Wakf conducted survey under Section 4(3) of the Wakf Act and submitted a report; and that on the Survey Commissioner's Report, which was published by the 2nd respondent in exercise of powers vested under Section 5 of the Wakf Act, on 24.01.2002 notifying the subject land as wakf land.

27. By the counter-affidavit, the 2nd respondent further contended that the petitioners, if they are aggrieved by the aforesaid gazette notification issued under Section 6 of the Wakf Act, have to challenge the same within one year from the date of publication and as the petitioners did not seek to challenge the gazette notification within one year, the petitioners had lost the chance of challenging the gazette.

28. By the counter-affidavit, it is further contended that as per the notification issued under the gazette, the subject land under Dargah Hazarath Mehar Pasha Saheb (Rh) with graveyard, which is patently a wakf land; that it is settled principle of law that ORCs had to be issued in favour of the respective institution and not for any individual in respect of wakf property; that the ORC alleged to have been issued in favour of the petitioners is erroneous; and that the petitioners cannot claim to be owners of the subject land, much less being conferred with any rights to alienate the subject property.

29. By the counter-affidavit, it is further contended that since, the subject lands were given as service inams, for the purpose recognized by Muslim law as pious, religious or charitable constitute the property as wakf and wakf being a permanent dedication, grant of patta under the Inams Act does not nullify it and further since, the said lands are notified as wakf as per law, it always remains as wakf.

30. In support of the above contentions, the respondents relied upon various decisions of the Apex Court in R itesh Tiw ari & another v/ s. State of U.P . & others 1 ; Union of I ndia v/ s. P aras Lam inates 2 ; R eserve Bank of I ndia v/ s. P eerless General Finance and I nvestm ent Com pany Ltd 3 ; J.K . Synthetics Ltd. v/ s. Collector of Central Excise 4 ; Sakiri Vasu v/ s. State of U.P . 5 ; Girdhari Lal and Sons v/ s. Balbir Nath M athur and others 6 ; W orkm en of Am erican Express I nternational Banking Corporation v/ s. M anagem ent of 1 AIR 2010 SC 3823 2 AIR 1991 SC 696 3 AIR 1996 SC 646 4 AIR 1996 SC 3527 5 AIR 2008 SC 907 6 AIR 1986 SC 1499 14 Am erican Express I nternational Banking Corporation 7 ; and P ratap Singh v/ s. K rishna Gupta and others 8 .

31. The petitioners in W.P.No.30132 of 2010 have filed reply-affidavit to the counter-affidavit filed by the 2nd respondent, denying the counter- affidavits averments, and contending that though the gazette was published in the year 2002, since, no notice was served on the petitioners, they were not aware of the same; that the entries in the revenue records were not changed or mutated in the name of wakf; that when the petitioners received summons from the office of the Joint Collector in October, 2009, on the opponents of the petitioners questioned the ORC granted in their favour in the year 1999, before the Joint Collector, Mahabubnagar, in the year 2009 i.e. 10 years after granting of ORC, the petitioners came to know about the publication of their inam lands as wakf property; and that the Joint Collector, without appreciating the law and facts, allowed the appeal filed by the appellants therein and remanded the matter for fresh enquiry;

32. Aggrieved thereby, the petitioners have filed the present Writ Petition, and thus, there is no delay in questioning the gazette publication.

33. I have taken note of the respective submissions made. 7 AIR 1986 SC 458 8 AIR 1956 SC 140 15

34. At the outset, it is to be noted that the challenge in these Writ Petitions to the impugned gazette notification dt.24.01.2002 is multi- folded. The primary challenge is on the ground that the impugned notification has been issued under Section 4(3) of the Wakf Act published under Section 5(2) of the Wakf Act, 1954, which stood repealed with the introduction of the Wakf Act, 1995. The other main ground of challenge of the petitioners is that the procedure prescribed under Section 4 of the Wakf Act, 1954, which is pari materia to Sections 4 and 5 of the Wakf Act, 1995 has not been followed while issuing the impugned notification including the subject properties as wakf properties.

35. Insofar as the impugned notification issued on 24.01.2002 is concerned, a perusal of the said notification would show that the same has been issued claiming that the subject lands have been surveyed under Section 4(3) of the Wakf Act, 1957 (wrongly noted instead of the Wakf Act, 1954) and published under Section 5(2) of the Wakf Act, 1954. On the day when the aforesaid notification is issued, the 1954 Act and its amendment to Act 1984 stood repealed and as would be evident from Section 112 of the 1995 Act. Further, Section 112 of the 1995 Act, specifies that notwithstanding the repeal, it is only the acts which are done or any action taken under the old Act would get saved.

36. Further, Section 112 of the 1995 Act, which provides for repeal and saving of the Wakf Act, does not specify any provision of the 1954 Act, 16 much less Sections 4 and 5 of the 1954 Act getting saved even after repeal. The effect of repeal of the 1954 Act is that it destroys of inchoate rights and all causes of action which may have arisen under the provisions of the repealed statute. It is trite law that once a statute is repealed, the provisions under the repealed statute cannot be relied upon, as held by the Apex Court in D.C.Bhatia v/ s. Union of I ndia 9 .

37. A Division Bench of this Court while dealing with amendment made to the provisions of the VAT Act extending the period of limitation to make assessment after repeal of the said act, by referring to catena of decisions and also the principles of statutory interpretation, speaking through The Chief Justice Ujjal Bhuyan, His Lordships Then, in the case of Sri Sri Engineering W orks and others v/ s. The Deputy Com m issioner (CT), Begum pet Division, Hyderabad 10 , had held as under:

"123. Repeal of an enactment would mean that such an enactment is erased from the statute book; it would no longer be in existence. This aspect was gone into by the Gujarat High Court in Reliance I ndustries Lim ited MANU/GJ/1405/2020 : 2020 82 GSTR 32 (Guj.)(supra). It has been held as follows:

68.2 Crates on Statue Law, 7th Edition, at pages 411-412 states the principle as under:

1995 (1) SCC 104 10 MANU/TL/1197/2022 17 "When an Act of Parliament is repealed, said Lord Tenterden in Surtees v. Ellison 1829 9 (B&C) 750, 752; 7 L.J.K.B. 335, it must be considered (except as to transactions past and closed) as if it had never existed. That is the general rule'. Tindal C. J. states the exception more widely. He says (in K ay v/ s. Goodw in MANU/INOT/0001/1830 : 1830 6 ving 576 ; 8 LJ CP 212); The effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those action which were commenced, prosecuted and concluded whilst it was an existing law."

68.5 Justice G.P.Singh in his Principles of Statutory Interpretation, 12th Edition, 2010, while examining the consequences of repeal has stated as follows (at page 695):

"Under the common law rule the consequences of repeal of a statute are very drastic. Except as to transactions past and closed, a statute after its repeal is as completely obliterated as if it had never been enacted. The effect is to destroy all inchoate rights and all causes of action that may have arisen under the repealed statute. Therefore, leaving aside the cases where proceedings were commenced, prosecuted and brought to a finality before the repeal no proceeding under the repealed statute can be commenced or continued after the repeal."

130. Once it is held that the VAT Act stood repealed with effect from 01.07.2017 except for the limited categories of goods specified in substituted Entry 54 of List II, question of amending the repealed act in respect of those goods by virtue of the Second Amendment Act would not arise.

38. Further, A Division Bench of this Court dealing with a similar challenge in relation to a notification issued under the Wakf Act after its repeal in the case of Telangana State W aqf Board v/ s. Solithro P rivate Lim ited and others 11 , by referring to various decisions of the Apex Court, has held as under:

"14. The making of survey under Section 4 of the Act is not a mere administrative act but it is to be informed by a quasi- judicial inquiry. The surveyor has the power to find out whether a particular property is a wakf and Commissioner has to determine the aspects which have been mentioned in Section 4 of the Act (see M aharashtra State Board of W akfs v/ s. Shaikh Yusuf Bhai Chaw la (2022 SCC OnLine SC 1653). The effect of repeal of a statute is to destroy all inchoate rights and all causes of action which may have arisen under the provisions of repealed statute. When repeal is followed by a fresh legislation on the same subject, the Court undoubtedly has to look into the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy them (see State of Punjab v/ s. M ohar Singh (MANU/SC/0043/1954:1955 (1) SCR 893): AIR 1955 SC 84). The aforesaid view was reiterated with approval in Gam m on India Ltd. v/ s. The Special Chief Secretary ((2005)142 STC 370(AP)) and it was held that the issue with regard to the continuation of pending proceedings under a repealed statute depends either under the savings contained in the Repeal Act or under Section 6 of the General Clauses Act. It was further held that question whether a right 11 MANU/TL/1421/2023 19 was acquired or a liability incurred under a statute before its repeal in each case depends on the construction of a statute and the facts of a particular case. It was also held that when there is a repeal of an enactment and simultaneous re-enactment, the re-enactment has to be considered as reaffirmation of the old law and the provisions of the repealed Act which are thus re-enacted continue in force uninterruptedly unless the re-enacted enactment manifests an intention incompatible with or contrary to the provisions of the repealed Act. The aforesaid view was again reiterated with approval in State of Haryana v/ s. Hindustan Construction Com pany Lim ited (MANU/SC/1185/2017)."

39. The conspectus of the aforesaid decisions of this Court, wherein the legal position as enunciated by the Apex Court by its various decisions has been considered in detail, it is clear that once a statute is repealed, the provisions of the repealed statute cannot be invoked to undertake any act under the said Act, unless and until the provisions which are sought to be invoked are saved under the repealing Act.

40. In the facts of the present case, it is not shown to this Court that either Sections 4(3) and 5(2) of the 1954 Act have been saved for respondent Nos.1 and 2 to issue the impugned notification, 7 years after repealing of the 1954 Act for this Court to held the impugned notification as having been validly issued.

41. Further, the other challenge to the impugned notification is with regard to the notices not having been issued to the petitioners in both the Writ Petitions, who claim to be in possession and enjoyment of the subject 20 land. Though on behalf of the respondents, it has been contended that the respondents-authorities having followed the due process of law before issuing the impugned notification, no material is placed before this Court as to when the respondents have conducted preliminary survey of the wakf land as contemplated under Sections 4 and 5 of the 1954 Act.

42. The Hon'ble Supreme Court in the case of Salem M uslim Burial P rotection Com m ittee v/ s. State of Tam ilnadu and others 12 , had held that the Act provides for two services, settlement of disputes arising thereto and submission of the report to the State Government and to the Board, and thus, conducting of surveys before declaring a property as wakf property is sine qua non.

43. In the facts of the present cases, the 2nd respondent is required to conduct preliminary survey as contemplated under Section 4 of the Act and also considering the objections, if any, before submitting report to the State Government, based on which, the State Government is required to issue a notification notifying the subject properties as wakf properties. Having failed to state the aforesaid details, which are mandatory procedural requirements to be complied with, cannot absolve itself of complying with the said monetary requirement to claim that the 12 2023 LiveLaw (SC) 454 21 notification as having been issued by following the due procedure prescribed under the Act.

44. A Co-ordinate Bench of this Court, while considering a similar claim made under the Wakf Act, in the case of Cherukri P raveena, and others v/ s. State of Telangana 13 had held that in the absence of the proper procedure as prescribed under Sections 4 and 5 of the Wakf Act before issuing gazette notification being followed, mere issuance of gazette notification, under Sections 4 and 5 of the Act could not constitute a valid wakf in respect of the land in question therein.

45. Even in the present Writ Petitions, wherein a challenge is made to the impugned notification, the said details having not been stated by the respondents in their counter-affidavit, which only goes to show that the said notification has been issued, without following the procedure prescribed under the 1954 Act, notwithstanding the fact that the said Act stood repealed.

46. Though on behalf of the respondents, it is contended that Clause 6 of the General Clauses Act, is to be construed literally so as to save the notification issued, having regard to the law laid down by the Apex Court, the said contention is without any merit or substance. 13

(2024) 4 ALT466 22

47. Though on behalf of the respondents, it is also contended that since the subject property is notified as wakf property and the principle of 'once a wakf is always wakf' stands attracted, firstly, it is to be noted that prior to issuance of impugned notification, no material is placed to show that the said properties have been notified as Wakf properties. Further, in respect of existing wakf properties not registered earlier on enactment of Wakf Act 1995, in terms of Section 36(8) of the 1995 Act are required to be registered within three months from the commencement of the 1995 Act. The Wakf Act 1995 had come into force with effect from 01.01.1996 and thus, if the subject properties covered by the impugned notification are wakf properties under the 1954 Act, though ought to have been registered on or before 31.03.1996 for the lands covered by the impugned notification to be considered as a Wakf created prior to enactment of the 1995 Act.

48. Since, the counter-affidavit filed on behalf of the 2nd respondent is silent on all these aspects, mere issuance of a gazette notification dt.24.01.2002 purported to be under the 1954 Act, cannot be held to be valid exercise of power for the impugned notification to be sustained.

49. Similar view is also taken by another Coordinate Bench of this Court in W.P.No.447 of 2007 dt.18.09.2024.

50. In view of the aforesaid pronouncements, the reliance placed by the learned counsel for the respondents on various decisions does not advance the case of the respondents for this Court to sustain the impugned notification.

51. Thus, considered from any angle, this Court is of the view that the impugned notification dt.24.01.2002 cannot be said as validly issued for it to be sustained.

52. Accordingly, the Writ Petitions are allowed and the impugned notification dt.24.01.2002 is set aside.

53. In view of the orders passed by this Court in W.Ps., setting aside the notification dt.24.01.2002, this Court is of the view that the order of the Joint Collector allowing the appeal filed by the Members of the Masjid Committee claiming the said land as wakf land based on the notification has to fail.

54. Accordingly, the Civil Revision Petition is allowed and the order of the Joint Collector is set aside.

55. Miscellaneous petitions, if any, pending in these matters, shall stand closed. No order as to costs.

__________________ T. VINOD KUMAR, J Date:28.07.2025 GJ

Unlock Advanced Research with PRISMAI

Telangana High Court