Telangana High Court
Smt Rubina Alvi vs The State Of Telangana on 16 December, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 10268 OF 2023
O R D E R:
Petitioner seeks to declare the action of Respondents 2 to 4, specifically their failure to remove petitioner's property from the Prohibited Property Register, as illegal, arbitrary, and unsustainable. Further, he seeks directions to respondents to act upon the representations and Applications submitted by him concerning the construction on Plot No. 16-2-852-866, Saidabad, Hyderabad, and to refrain from interfering with her ownership and possession over the said plot.
2. Petitioner claims to be the absolute owner of subject plot, which she purchased through registered sale deed, dated 31.07.2001 from Mrs. Sajida Sultana, who had acquired the said plot from Smt. Hurmat Banu, wife of late Ghulam Moinuddin Khan, under registered sale deed, dated 24.01.1983. Vendor of Smt. Hurmat Banu, Smt. Ghousia Sabera Sultana, wife of Syed Ziaullah Hussain, inherited the plot through a compromise decree in I.A. No. 594 of 1974 in O.S. No. 80 of 1970 on the file of the Additional Chief Judge, City Civil Courts, 2 Hyderabad, dated 12.12.1974. Since the time of purchase in 2001, petitioner is in uninterrupted possession of the plot. According to her, surrounding land has been developed into residential plots with multi-storied buildings and pucca houses without objection from any authorities. The issue arose when, in 2014, petitioner sought a valuation certificate for the plot from Sub-Registrar's Office in Azampura, where she was surprised to learn that plot was included in Prohibited Property Register. She alleges that this inclusion was a result of mala fide action by Respondents 3 and 4- Chairman, State Waqf Board and the Special Officer / Chief Executive Officer, specifically following petitioner's refusal to comply with the unlawful demands made by the officials of the Waqf Board.
Petitioner insists that she is a bona fide purchaser, having bought the plot in good faith and that the plot is not Waqf land. It is her case that Waqf Board's claim over the plot is baseless and that despite repeated requests under the Right to Information Act (RTI), no substantial documents have been provided to demonstrate that plot in question is part of the Waqf estate. Further, petitioner's representations dated 30.08.2014, 20.09.2018 and 07.12.2021 to Respondents 3 and 4 remained 3 pending and she now seeks intervention of this Court to resolve the issue and prevent further unlawful interference.
The grievance of petitioner is that the Waqf Board has not raised any objection to development of other plots in the vicinity, including Survey Nos. 255/1, 255/2, 255/3, 255/4, 255/5, 255/6, wherein multi-storied buildings and commercial structures were raised, all of which have been transferred and developed without any interference from Respondents 3 and 4. This inconsistency, petitioner argues, reflects a discriminatory and arbitrary application of law, which violates Article 14 of the Constitution of India. Waqf Board has not objected to any of these developments, but has wrongfully singled out her property based on personal vendetta. According to her, no evidence has been provided by the Waqf Board to prove that land in question is part of Waqf estate. Petitioner insists that plot is situated far from the Dargah Hazrath Syed Saheb Basha (R/H) and has no connection to any Waqf property. She raised concerns regarding failure of Waqf Board to provide Munthakab document under RTI, which allegedly designates the property as Waqf land, on the ground that it is not readily traceable by the proceedings, 4 dated 26.09.2019. Petitioner therefore, urges that her representations be considered by respondents, expeditiously.
3. Respondents 3 and 4, officials of Wakf Board, in their counter-affidavit states that property in question is Waqf land and has been properly included in Register of Prohibited Transfers. According to them, sale deeds executed in favour of petitioner are void because property is dedicated to a religious institution and cannot be transferred or alienated under the law governing Waqf properties. They assert that property in question is part of a larger Waqf estate that was granted for service of Mahboob Ali Shah in Survey Nos. 255/1, 255/2, 255/3, 255/4, 255/5 and 255/6 in Saidabad Village in anextent of 31 Begha, 22.5bams (equal to Acs.28.29 guntas); relevant land was leased to various individuals for a term of ninety-nine years by the Director of Religious Affairs. It is the case of respondents that petitioner's acquisition of land through a registered sale deed does not confer legal ownership, as the plot is part of Waqf estate and petitioner's purchase constitutes an illegal encroachment on Waqf property. It is contended that there is a public record of Waqf status of property, as such, any private transactions involving land are void. They also highlight 5 that petitioner's distress, as claimed, is result of her own unlawful possession of Waqf property, and not due to any fault on the part of the Wakf Board. It is emphasized that Waqf Board has a duty to protect the interests of religious institution and prevent encroachments on Waqf land. Respondents argue that these survey numbers were included in Prohibited Property Register to prevent illegal transfer of Waqf property and to safeguard the interests of religious institution. They claim that petitioner's possession of plot is unlawful, as it is part of the Waqf estate, and further assert that petitioner has alternative remedies available under the Waqf Act, 1955, specifically by approaching the Waqf Tribunal under Section 83.
Respondents argue that petitioner encroached upon the plot and is in unauthorized possession of it, as the property is part of the Waqf estate. They assert that petitioner, along with other encroachers, executed sale deeds over Waqf land and falsely got the property details entered into municipal records, thereby relying on fraudulent documents. It is stated that merely appearing in municipal records or Sub-Registrar's office does not confer legal ownership over a Waqf property. They emphasize that once a property is designated as Waqf, its 6 nature remains unchanged and it cannot be alienated under any circumstances. They further submit that petitioner and other encroachers did not act in good faith when purchasing the land, as the Waqf status of property is a matter of public record.
4. Petitioner, in her reply, states that respondents' counter-affidavit itself reveals that land was leased to individuals such as Jeewan Yaarjung, Abbas Ali, and Ibrahim Ali Khan for a term of ninety-nine years, and leaseholders subsequently sold land to various individuals. Petitioner's predecessor in title, Mrs. Sajida Sultana, acquired plot from Smt. Hurmat Banu, who acquired it from Smt. Ghousia Sabera Sultana. Petitioner asserts that this chain of title is valid and cannot be disregarded based on respondents' unsubstantiated claims. She contends that leaseholders and their heirs sold leased land to various individuals through registered sale deeds, which were further transferred multiple times, eventually including petitioner's purchase of a small piece of land measuring 260 square yards. Petitioner's predecessor-in-title had sold a part of the land and constructed a house on the remaining plot, with no objections raised by respondent authorities. She highlights that authorities did not object to 7 similar transactions involving other plots in the vicinity and that various properties, including multi-storied buildings, were developed without issue. It is stated that according to respondent's own counter, land in question was not included in the first Waqf survey; moreover, subject land is not the same land referred to in counter affidavit, as land mentioned in counter is located in a different locality, far from subject land. Petitioner points out that subject land is situated at Akberbagh, while the land referred to in counter is located at Kurmaguda.
5. Learned counsel for petitioner Sri Kothacheruvu Ramesh Babu submits that this Court has jurisdiction to entertain a writ petition under Article 226 even in matters involving questions of fact. He relied, in support of the said contention, on the judgment of the Hon'ble Supreme Court in Babubhai Muljibhai Patel vs. Nandlal Khodidas Barot 1, He argues that the present case does not require referral to a separate suit or to the Waqf Tribunal, as issue pertains to unlawful interference with petitioner's ownership rights over disputed plot. Learned counsel maintains that property in question is not Waqf property and has been validly purchased 1 AIR 1974 SC 2105 8 through registered sale seeds. She argues that respondents' claims regarding property's Waqf status is not substantiated by the facts and that petitioner should not be directed to approach Waqf Tribunal. According to learned counsel, this Court may take into consideration long history of transactions and enjoyment of property, which have altered its nature over time.
6. Heard Sri Farah Azam Khan, learned Standing Counsel on behalf of Waqf Board. He submits that all the matters pertaining to Waqfs should be filed in the first instance before the Waqf Tribunal constituted under Section 83 of the Waqf Act, 1995 and should not be entertained by a civil Court or by this Court straightaway under Article 226. In support of the said contention, he relied on the judgment of the Hon'ble Supreme Court in Board of Waqf, West Bengal v Anis Fatima Begum 2.
7. Having heard learned counsel on either side and having perused the material on record, it is clear that petitioner submitted representations to the C.E.O., Telangana Waqf Board on 30.08.2014, 20.09.2018 and 07.12.2021 stating that she is in peaceful possession of subject plot having purchased the 2 (2010) 14 SCC 588 9 same from its rightful owner by virtue of sale deed in 2005; subsequently, her property was got listed under prohibited category. It is her case that her neighbour Tasneem Fatima sold prohibited waqf property to one Shaik Sadiquiddin, however, no action was taken by Waqf Board, whereas in her case, they served a notice describing her property as prohibited property. When she represented to the Central Waqf Counsel, he directed the Waqf Board to take necessary action as per law, but so far, no action has been taken. The grievance of petitioner is that respondent Waqf Board singled out her case, which is nothing but discriminatory and violative of Article 14 of the Constitution. It is pointed out by petitioner that respondents in their counter stated that waqf land was leased out to various individuals for ninety nine years and those individuals have been selling land to others and to prove the same, petitioner also annexed copies of sale deeds executed in that regard. However, Waqf Board has not moved its little finger to initiate action against the persons, who are stated to have sold the waqf properties. Further, the Board failed to provide Munthakab document sought under the provisions of the Right to Information Act for the simple reason that it is not readily traceable. This itself 10 shows the discriminatory treatment of Waqf Board towards petitioner.
8. Normally, a Writ Court should not interfere directly in matters concerning waqf property unless there is a clear violation of law or procedure. The primary jurisdiction to decide disputes regarding waqf land lies with the designated Waqf Tribunal which means that any dispute should first be brought before the body before seeking intervention from a writ Court. However, in the background mentioned in the above paragraphs, the contention of respondents that petitioner has to be relegated to Waqf Tribunal under Section 83 of the Act cannot be accepted. Hence, in view of the judgment relied on by learned counsel for petitioner in Babubhai Muljibhai Patel's case (supra), this Court deems it appropriate to entertain this Writ Petition under Article 226 even though it involves questions of fact as the issue pertains to petitioner's ownership rights over the plot which accrued to her vendors by way of a compromise decree. This Court therefore, thinks it appropriate to direct respondent authorities to consider representations said to have been submitted by petitioner within a fixed time-frame.
9. In the result, Writ Petition is disposed of directing respondent authorities to consider and decide representations, 11 latest being the one dated 07.12.2021, submitted by petitioner, within four weeks from the date of receipt of a copy of this order. It is further directed that respondent authorities shall not interfere with subject plot without following due process of law. No costs.
10. Consequently, miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 16th December 2024 ksld