Telangana High Court
Chanavalli Krishna Murthi vs The Telangana State Waqf Board on 17 April, 2026
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION NO.16121 OF 2020,
WRIT PETITION NO.16127 OF 2020,
WRIT PETITION NO.16129 OF 2020
AND
WRIT PETITION NO.16130 OF 2020
DATED : 17.04.2026
WRIT PETITION NO.16121 OF 2020
Between:
Chanavalli Krishna Murthi and 60 others
... Petitioners
AND
The Telangana State Waqf Board
represented by its Chief Executive
Officer, Razzack Manzil, Opposite
Public Gardens, Nampally, Hyderabad
and 17 others
... Respondents
COMMON ORDER
W.P.No.16121 of 2020 is filed seeking a Writ of Mandamus declaring the Gazette Notification No.7-A dated 16.02.1989 issued by W.P.Nos.16121, 16127, 16129 & 16130 of 2020 2 respondent No.1 to the extent it includes the lands of the petitioners i.e., Ac.14.39 guntas in Sy.No.49, Ac.17.04 guntas in Sy.No.62, Ac.14.06 guntas in Sy.No.65, Ac.13.06 guntas in Sy.No.66, Ac.7.01 guntas in Sy.No.101, Ac.9.25 guntas in Sy.No.152, Ac.15.16 guntas in Sy.No.153, Ac.18.24 guntas in Sy.No.154, Ac.7.21 guntas in Sy.No.158, Ac.6.00 guntas in Sy.No.159, Ac.3.00 guntas in Sy.No.168, Ac.22.20 guntas in Sy.No.169 and Ac.21.37 guntas in Sy.No.170 of Aloor-II village, Chevella Mandal, Ranga Reddy District at Sl. No.3354, as illegal, arbitrary, unconstitutional and in violation of principles of natural justice and consequently to set aside the same; and also declaring the Memo dated 04.12.2019 in Proceedings No.L/1997/2019, L/664/2018, L/661/2018, L/1983/2019, L/1984/2019, L/1988/2019, L/615/2018, L/623/2018, L/1993/2019, L/1995/2019, L/613/2018, L/1992/2019, L/1991/2019, L/1989/2019, L/1986/2019, L/1985/2019, L/1990/2019, L/1996/2019, L/1994/2019, L/662/2018 and L/1987/2019 issued by respondent No.4 as illegal, arbitrary, unconstitutional and in violation of principles of natural justice and consequently to set aside the same and to direct respondent No.4 to issue occupancy rights certificate under the provisions of the Telangana Abolition of Inams Act, 1955 to the W.P.Nos.16121, 16127, 16129 & 16130 of 2020 3 petitioners in respect of their respective claims in the aforesaid lands and to pass such other order or orders.
2. W.P.No.16127 of 2020 is filed seeking a Writ of Mandamus declaring the Gazette Notification No 7-A dated 16.02.1989 issued by respondent No.1 to the extent it includes the lands of the petitioners i.e., Ac.16.07 guntas in Sy.No.84, Ac.15.29 guntas in Sy.No.85, Ac.7.23 guntas in Sy.No.92, Ac.11.10 guntas in Sy.No.93, Ac.9.10 guntas in Sy.No.94, Ac.10.39 guntas in Sy.No.95, Ac.5.31 guntas in Sy.No.133, Ac.1.22 guntas in Sy.No.138/A, Ac.1.20 guntas in Sy.No.138/AA and Ac.4.14 guntas in Sy.No.211 of Aloor-I Village, Chevella Mandal, Ranga Reddy District at Sl.No.3354, as illegal, arbitrary, unconstitutional and in violation of principles of natural justice and consequently to set aside the same; and declaring the Memo dated 04.12.2019 in Proceedings No.L/614/2018, L/1998/2019, L/625/2018, L/1999/2019 and L/663/2018 issued by the respondent No.4, as illegal, arbitrary, unconstitutional and in violation of principles of natural justice and consequently to set aside the same and to direct respondent No.4 to issue occupancy rights certificate under the provisions of the Telangana Abolition of Inams Act, 1955 to the petitioners in respect of their W.P.Nos.16121, 16127, 16129 & 16130 of 2020 4 respective claims in the aforesaid lands and to pass such other order or orders.
3. W.P.No.16129 of 2020 is filed seeking a Writ of Mandamus declaring the Gazette Notification No.7-A dated 16.02.1989 issued by respondent No.1 to the extent it includes the lands of the petitioners i.e.,
(i) Ac.4.21 guntas in Sy.No.92, Ac.7.19 gutnas in Sy.No.93, Ac.6.22 guntas in Sy.No.94, Ac.8.04 guntas in Sy.No.98, Ac.25.01 guntas in Sy.No.99, Ac.18.36 guntas in Sy.No.100, Ac.3.36 guntas in Sy.No.101, Ac.6.00 guntas in Sy.No.116, Ac.5.35 guntas in Sy.No.133, Ac.6.02 guntas in Sy.No.134 and Ac.5.33 guntas in Sy.No.136 of Aloor-I village,
(ii) Ac.4.24 guntas in Sy.No.60, Ac.21.36 guntas in Sy.No.63, Ac.24.00 guntas in Sy.No.64, Ac.3.00 guntas in Sy.No.101, Ac.9.30 guntas in Sy.No.111, Ac.1.12 guntas in Sy.No.113, Ac.1.07 guntas in Sy.No.114 and Ac.6.23 guntas in Sy.No.115 of Aloor-II village, (iii) Ac.13.12 guntas in Sy.No.68, Ac.9.08 guntas in Sy.No.69, Ac.14.22 guntas in S.No.78, Ac.15.12 guntas in S.No.79, Ac.10.38 guntas in S.No.80, Ac.16.26 guntas in Sy.No.81, Ac.13.14 guntas in Sy.No.82 and Ac.11.02 guntas in Sy.No.83 of Aloor-III village, Chevella Mandal, Ranga Reddy District at Sl.No.3354, as illegal, arbitrary, unconstitutional and in W.P.Nos.16121, 16127, 16129 & 16130 of 2020 5 violation of principles of natural justice and consequently to set aside the same; and also declaring the Memo dated 04.12.2019 in Proceedings No.L/1981/2019, L/624/2018, L/1982/2019, L/657/2018, L/660/2018, L/656/2018, L/659/2018, L/658/2018, L/654/2018 and L/1978/2019 issued by respondent No.4, as illegal, arbitrary, unconstitutional and in violation of principles of natural justice and consequently to set aside the same and to direct Respondent No.4 to issue occupancy rights certificate under the provisions of the Telangana Abolition of Inams Act, 1955 to the petitioners in respect of their respective claims in the aforesaid lands and to pass such other order or orders.
4. W.P.No.16130 of 2020 is filed seeking a Writ of Mandamus declaring the Gazette Notification No 7-A dated 16.02.1989 issued by respondent No.1 to the extent it includes the lands of the petitioners i.e., Ac.12.36 guntas in Sy.No.52, Ac 10.08 guntas in Sy.No.54, Ac.9.08 guntas in Sy.No.55, Ac.17.28 guntas in Sy.No.56, Ac.8.28 guntas in Sy.No.57, Ac.9.00 guntas in Sy.No.58, Ac.9.28 guntas in Sy.No.59, Ac.9.04 guntas in Sy.No.61, Ac.12.36 guntas in Sy.No.62, Ac.10.28 guntas in Sy.No.65, Ac.5.28 guntas in Sy.No.66, Ac.20.17 guntas in Sy.No.67, Ac.8.24 guntas in Sy.No.73, Ac.14.22 guntas in Sy.No.74, W.P.Nos.16121, 16127, 16129 & 16130 of 2020 6 Ac.19.31 guntas in Sy.No.75, Ac.3.00 guntas in Sy.No.84, Ac.5.00 guntas in Sy.No.85 and Ac.10.00 guntas in Sy.No.86 of Aloor-III Village, Chevella Mandal, Ranga Reddy District at Sl.No.3354, as illegal, arbitrary, unconstitutional and in violation of principles of natural justice and consequently to set aside the same; and also declaring the Memo dated 04.12.2019 in Proceedings No.L/661/2018, L/619/2018, L/612/2018, L/622/2018, L/655/2018, L/617/2018, L/616/2018, L/620/2018, L/618/2018, L/621/2018, L/1979/2019 and L/1980/2019 issued by respondent No.4 as illegal, arbitrary, unconstitutional and in violation of principles of natural justice and consequently so set aside the same and to direct respondent No.4 to issue occupancy rights certificate under the provisions of the Telangana Abolition of Inams Act, 1955 to the petitioners in respect of their respective claims in the aforesaid lands and to pass such other order or orders.
5. The brief facts leading to the filing of these writ petitions are as follows:
The petitioners claim that their forefathers and thereafter they are in personal cultivation of the lands in question in Aloor-I, W.P.Nos.16121, 16127, 16129 & 16130 of 2020 7 Aloor-II and Aloor-III Villages for decades together. It is submitted that the forefathers of some of the petitioners are the protected tenants within the meaning of the Telangana Tenancy and Agricultural Land Act, 1950 and this is reflected in the khasra pahani as 'rakshita kouldar'. It is stated that forefathers of some of the other petitioners were ordinary tenants. Petitioner No.18 in W.P.No.16130 of 2020 claims that his forefathers as well as the forefathers of other petitioners were in personal cultivation of the land on the crucial date under the Telangana Abolition of Inams Act, 1955 i.e., 01.11.1973 and that the same is reflected in the corresponding pahanies of 1973-74 and in the immediate preceding year (1972-73) as well as the succeeding year (1974-75) and after their lifetime, their legal heirs and family, right up to the present generation, consisting of the petitioners and their family members have continued to be in personal possession and cultivation. It is stated that in view of the above factual position, the petitioners are entitled to be registered as occupants under Sections 7 and 8 of the Telangana Abolition of Inams Act, 1955 and therefore, they applied for 'Occupancy Rights Certificate' (ORC) to respondent No.4 under Section 10 of the said Act read with Rule 5 of the Telangana Abolition of Inams W.P.Nos.16121, 16127, 16129 & 16130 of 2020 8 Rules, 1975 in March, 2018. However, their applications were rejected by respondent No.4 vide Memo dated 04.12.2019 (Impugned Memo) on the ground that the subject land is Waqf property, covered in the Gazette Notification issued under Section 5(2) of the Waqf Act, 1954 by the respondent No.1/Waqf Board on 16.02.1989 at Sl. No.3354.
6. It is submitted that the memo refers to a report dated 08.03.2018 of respondent No.5 (MRO) which acknowledges the fact in the pahani for the year 1973-74, that the petitioners and their forefathers were recorded as occupants for the extents mentioned therein and that they are in personal cultivation, i.e., on the crucial date and even as the date of the report. It is submitted that the petitioners came to know about the existence of the Gazette Notification dated 16.02.1989 for the first time only through the Memo dated 04.12.2019. It is stated that the Gazette Notification at Sl. No.3354 ('Impugned Gazette Notification') shows a total extent Ac.1294.09 guntas in various survey No.s in Aloor-I, Allor- II and Aloor-III Villages as property of the Waqf named Hazrath Makhdoom Biyabani and graveyard which includes the land in question in all these writ petitions. The petitioners claiming to be the farmers and dependent on the subject land for their livelihood, are aggrieved by the W.P.Nos.16121, 16127, 16129 & 16130 of 2020 9 rejection of their applications for 'Occupancy Rights Certificate' as it effectively strips them of any right over the land and they are now vulnerable to be dispossessed at any time. It is submitted that if they are deprived of their land, they cannot avail welfare schemes even on the basis of Pattedar Passbooks. Therefore, challenging the Gazette Notification dated 16.02.1989 and also the Memo dated 04.12.2019, these Writ Petitions are filed.
7. Learned counsel for the petitioners, while reiterating the submissions made in the writ affidavit, raised the following grounds against the impugned Gazette Notification No.7-A dated 16.02.1989. (1) Statutory prerequisite of survey/enquiry has not been fulfilled.
It is submitted that before issuance of a Gazette Notification under Section 5(2) of the Waqf Act, 1954, a survey/enquiry by the Waqf Commissioner under Section 4(3) of the Waqf Act has to be conducted and thereafter the report of the Commissioner along with list of properties has to be submitted to the State Government under Section 5(1) of the Waqf Act which, thereafter has to verify the same and issue the Gazette Notification notifying the waqf properties. It is submitted W.P.Nos.16121, 16127, 16129 & 16130 of 2020 10 that the survey therefore has to be a valid survey through a detailed formal enquiry with due application of mind by the Survey Commissioner to find out at the grass root level, as to which properties are waqf properties and it is sine qua non for a valid survey report to be prepared and it forms the basis for the notification under Section 5(2) of the Waqf Act and is not merely an informal enquiry. It is submitted that proper survey shall indicate the nature of the enquiry done, dates on which it was done, details of witnesses summoned and examined, details of summons/notices issued, details of documents examined, details of public records summoned for examination etc., as held by a Division Bench of this Court in the case of Kolachi Ram Reddy vs. State of A.P. 1 and also in the case of Gowra Reddy Vs. Govt. of A.P. 2. Learned counsel for the petitioners, while reiterating the above submissions, stated that the very fact that the Survey Commissioner has been given wide powers of a Civil Court under Section 4(4) of the Waqf Act shows that the survey contemplated ought to be thorough and detailed, but, in the present case, there was no survey/enquiry conducted by the Survey Commissioner as contemplated under Section 4(3) of the 1 2024 SCC Online TS 684 2 2002 SCC Online AP 16 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 11 Waqf Act. It is submitted that the survey report titled as "proforma for survey of Waqf properties" (which is filed along with the counter filed by the Waqf Board) does not indicate any details of enquiry/survey that was purportedly conducted. It is further submitted that no other document evidencing conduct of a detailed survey is produced by the Waqf Board. It is stated that the survey is said to have been done in the year, 1966 while in the counter affidavit, it is stated as 1966-67. Therefore, according to the learned counsel for the petitioners, the Waqf Board itself does not know the dates of survey. Therefore, the presumption to be drawn is that there was no survey conducted. Further, it is submitted that there is discrepancy in the details of the lands mentioned in the survey report and those mentioned in the impugned Gazette Notification. Therefore, the statutory prerequisite of the survey/enquiry was not fulfilled. Therefore, according to the petitioners, the consequential impugned Gazette Notification is vitiated and ought to be set aside.
(2) Long gap between purported survey and impugned Gazette Notification.
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 12 It is submitted that the year in which the alleged survey is conducted is stated to be the year 1966, whereas the impugned Gazette Notification was issued on 06.02.1989 i.e., after a long gap of 23 years. It is submitted that though there is no time limit prescribed under the Waqf Act, 1954 for issuance of notification after survey, the settled law is that statutory power has to be exercised within reasonable time. Therefore, according to the learned counsel for the petitioners, the gap of 23 years between the survey and issuance of notification vitiates the Impugned Gazette Notification. In support of this contention, the learned counsel for the petitioners placed reliance upon the following judgments.
(i) M/s. Bhagyanagar Investments Trading Pvt. Ltd vs. Sub- Registrar3.
(ii) Munawar Sultana Vs. Gosula Ramulu4.
(3) No notice to the occupants (petitioners) at the time of purported survey.
3 W.P.No.9378 of 2009 dt.06.02.2012 and W.A.No.1010 of 2012 dt.07.11.2013 4 2023 SCC Online TS 3820 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 13 Without prejudice to the above two grounds on which the Impugned Gazette Notification is challenged and assuming but not admitting that there was a survey/enquiry, it is submitted that the survey itself is vitiated due to violation of principles of natural justice i.e., absence of notice to the occupants of lands or notices to such of the persons whose rights are likely to be affected. Learned counsel for the petitioners placed reliance upon the following judgments.
(i) A.P. State Wakf Board Vs. Gowra Reddy 5, upheld by the Hon'ble Supreme Court in SLP in CC 12010-12015 of 2012 dated 27.02.2012.
(ii) A.P. State Wakf Board Vs. Hyderabad Archdioceses 6, upheld by Hon'ble Supreme Court in SLP in CC 19119-19122 of 2015 dated 09.01.2017.
(iii) M/s. Bhagyanagar Investments Trading Pvt Ltd., Vs. Sub-Registrar (3 supra).
5 W.A.No.745 of 2002 dt.21.03.2011 6 2010 SCC Online AP 1227 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 14 All the above three judgments (3, 5 and 6 supra) are followed and applied in common order dated 11.02.2021 in W.P. No.5938 of 2008 and batch which was upheld in the common judgment dated 12.11.2021 in W.A. No.318 of 2021 and batch. It is submitted that the SLP filed against the above judgment has been dismissed by the Hon'ble Supreme Court vide order dated 26.11.2024.
(iv) Kolachi Ram Reddy Vs. State of A.P. (1 supra) Learned counsel for the petitioners further submitted that though the survey report filed by the Waqf Board itself states that the local people are living for generations together as kouldars (tenants) in the subject land, yet no notice was ever issued to any of them and therefore, the survey report is vitiated and consequent Impugned Gazette Notification is liable to be set aside. As regards the contention of the Waqf Board that there is no notice required to be issued and that public notice was issued by DHAPDA SATTI (beat of tom tom/drum), it is submitted that these contentions are untenable in law. It is stated that the Waqf Board is taking contrary stands, that is on one hand, it states that no notice is required to be given and on the other hand, it states that the W.P.Nos.16121, 16127, 16129 & 16130 of 2020 15 notice was issued by beat of tom tom/drum. Therefore, according to the learned counsel for the petitioners, the contention of the respondents that notice was issued by beat of drum is thus concocted in the counter affidavit only to cover up the infirmity. It is stated that the said method of issuance of notice i.e., by beat of tom tom by the survey commissioner is not a recognized mode of issuing notice under any statute or rules and further that no evidence has been placed before the Court that there was a public notice by tom tom.
(4) Waqf Board failed to carry out its statutory duty under Section 5(2) of the Waqf Act, 1954.
It is stated that without prejudice to the above contentions under Section 5(2) of the Waqf Act, 1954, the Waqf Board is statutorily obligated to examine the report of the Survey Commissioner by duly applying its mind before publishing the lists of waqfs. In support of this contention learned counsel for the petitioners placed reliance upon the following judgments.
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 16
(i) Salem Muslim Burial Ground Protection Comm. Vs. State of T.N 7.
(ii) Gowara Reddy Vs. Government of A.P. (2 supra). It is submitted that in the present case, the Waqf Board has not applied its mind to the purported survey report, because if it had applied its mind, the absence of enquiry and absence of notice to the petitioners' predecessors would have become obvious. It is submitted that the Board has mechanically accepted and published the impugned list in 1989 based on the alleged survey report of 1966-67, i.e., admittedly after a long gap of 23 years.
(5) Violation of Article 14 of Constitution of India.
It is submitted that a vast extent of Ac.1294.09 guntas covering three different villages is being claimed as dedicated to a dargah and graveyard which is peculiar since the pahanies also do not reflect the name of the Waqf i.e., Hazrath Makhdoom Biyabani and graveyard even under the pattadar column. It is further submitted that the pahanies show the names of different individuals as inamdars for the three villages i.e., 7 TN (2023) 16 SCC 264 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 17 Maqdum Momuddin (Aloor-I), Saheb Hussain (Aloor-II) and Sameenullah and Hasanullah (Aloor-III) showing that lands were held as inam in their individual capacity and it is not service inam as claimed by the Waqf Board and therefore, there is total non-application of mind and arbitrariness apparent on the face of the Gazette Notification and reflects violation of Article 14 of the Constitution of India. (6) The Impugned Gazette Notification cannot bind the petitioners/their predecessors.
Without prejudice to all the above contentions and in the alternative, it is submitted that even if the Impugned Gazette Notification is sustainable under Section 6 of the Waqf Act, 1954, the Impugned Gazette Notification would be final and binding, after one year of its issuance, only on the Waqf Board, the mutawalli of the Waqf and any person interested in the Waqf, if they did not bring a suit within that time to question its contents but not on any other person/persons. It is submitted that since the petitioners are not the persons who are interested in the Waqf and they were not served with any notices prior to or at the time of alleged survey, it cannot affect the petitioners' rights over the subject property in any manner. It is submitted that as such, the W.P.Nos.16121, 16127, 16129 & 16130 of 2020 18 petitioners' rights to be issued ORC, cannot be denied or curtailed by citing the impugned Gazette Notification. In support of the same, learned counsel for the petitioners placed reliance upon the following judgments.
(i) Board of Muslim Wakfs Vs. Radha Kishan8.
(ii) Punjab Wakf Board Vs. Gram Panchayat9.
It is further submitted that this position holds good even after the enactments of the Waqf Act, 1995 and the amendment of Section 6 of the said Act in 2013, wherein the words "any person interested therein"
have been replaced by the words "any person aggrieved". In support of this contention, the learned counsel for the petitioners placed reliance upon the following judgment.
(i) Munawar Sultana Vs. Gosula Ramulu (3 supra) (7) Writ Petition is the only appropriate remedy for the petitioners.
The Waqf Tribunal and/or the Appellate Authority under the Inams Abolition Act are not proper efficacious remedies. 8 (1979) 2 SCC 46 9 (2000) 2 SCC 121 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 19 It is submitted that since there is (i) violation of principles of natural justice, (ii) failure to carry out statutory obligation (survey and examination of report) and (iii) there is violation of Article 14 of the Constitution of India; the alleged alternative remedy of approaching the Waqf Tribunal or the Appellate Authority under the Inams Abolition Act is not available. It is submitted that there is no bar to the entertainability of the present writ petition. It is submitted that several writ petitions on similar issues have been entertained by this Court and upheld by the Hon'ble Supreme Court. In support of his above contention, the learned counsel for the petitioners placed reliance upon the following judgments:-
(i) L.Chandra Kumar Vs. Union of India and others10
(ii) Board of Muslim Wakfs Vs. Radha Kishan (8 supra)
(iii) Punjab Wakf Board Vs. Gram Panchayat (9 supra)
(iv) Rashid Wali Beg Vs. Farid Pindari 11 10 (1997) 3 SCC 261 11 (2022) 4 SCC 414 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 20 It is further submitted that in the present writ petition, the question is not whether the subject property is Waqf property or not and the validity/effect of muntakhab relied upon by the Waqf Board and that the petitioners are not seeking adjudication of those issues. It is submitted that the limited challenge in these writ petitions is to the legality of the impugned Gazette Notification dated 16.02.1989 within the parameters of public law i.e., compliance with statute, compliance with principles of natural justice and non-arbitrariness. Therefore, according to the learned counsel for the petitioners, writ petition is the only appropriate remedy available to the writ petitioners. It is further submitted that there is no provision in the Waqf Act, 1954 to challenge the notification issued under Section 5(2) of the Waqf Act before the Waqf Tribunal. He placed reliance on the following judgments in support of this contention.
(i) Punjab Wakf Board Vs. Sham Singh Harike 12
(ii) Gosula Ramulu Vs. A.P. Wakf Board13.12
(2019) 4 SCC 698 13 2017 SCC OnLine Hyd 61 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 21 (8) Against the impugned Memo dated 04.12.2019 and that it deserves to be set aside since it is based solely on the impugned Gazette Notification, the following submissions were advanced.
It is submitted that the only ground on which the petitioners' ORC applications were rejected by the RDO vide the Impugned Memo dated 04.02.2019, is the inclusion of the subject property in the impugned Gazette Notification and it is submitted that since the impugned Gazette Notification deserves to be set aside for the reasons mentioned above, the impugned Memo dated 04.02.2019 also deserves to be set aside and the matter needs to be remanded to the file of the RDO for reconsideration of the petitioners' applications for issuance of ORCs without reference to the impugned Gazette Notification.
8. The learned counsel for the petitioners thus prayed that all the writ petitions be allowed.
9. The learned Senior Counsel, representing the learned Standing Counsel for Waqf Board has opposed the contentions raised by the learned counsel for the petitioners and placed reliance upon the W.P.Nos.16121, 16127, 16129 & 16130 of 2020 22 averments made by the Waqf Board in its counter affidavit and has advanced the following arguments:
(1) The subject land is a Service Inam dedicated to Dargah, Hazrat Makhdoom Biyabani and Graveyard.
The learned Senior Counsel submitted that the subject land is part of an extent of Ac.1,229.09 guntas in various survey numbers of Aloor-I, II and II Villages, Chevella Mandal, Ranga Reddy District granted in favour of certain Muttawalli's for rendering service to Darga, Hazrat Makhdoom biyabani and the said fact is recorded in the Munthakhab as per the proceedings of the Inam Department of the Government of Hyderabad in File No.29/56 Atiyath Inam for the year, 1350 Fasli (1940 AD), Taluka Shahabad, Hyderabad District. It is submitted that inams were granted in favour of certain beneficiaries to render service to (1) Dargah and Urs and (2) Graveyard and therefore, it is a Service Inam to institution and the names of the persons mentioned therein were stated to be grandsons and granddaughter of the 5th generation of muthavallies. It is submitted that the entire land was divided into 3 lots i.e., Qurra- 1/Aloor-1, Qurra-2/Aloor-2 and Qurra-3/Aloor-3 and statement is made on the basis of File No.29/56 Atiyath Inam for the year, 1350 Fasli W.P.Nos.16121, 16127, 16129 & 16130 of 2020 23 (1940 AD). It is stated that the implead petitioners in I.A. No.1 of 2021 in W.P. No.16127 of 2020 and batch claim to be the descendants of the original mutawallis and that their contention goes to show that the grant was made subject to rendering service to dargah and therefore, the claim of the petitioners is false.
(2) Occupancy Rights Certificates (ORCs) cannot be granted to the Inamdars or the cultivating Tenants as per the provisions of TS Tenancy and Agricultural Act, 1950.
It is submitted that since the subject land is Mafi Inam/Service Inam saddled with the burden of the service, the provisions of TS Tenancy and Agricultural Act, 1950 have no application to the lands granted. It is submitted that as per the Section 102 of the Act of 1950, it shall not apply to Service Inam lands and therefore, the writ petitioners as well as the implead petitioners are not entitled for grant of ORCs under Sections 4 and 7 of the Inams Abolition Act and can have no claim of any manner over the subject land and therefore, they have no locus standi to question the impugned Gazette Notification No.7-A dated 16.02.1989 issued by respondent No.1. It is submitted that the impugned Gazette Notification does not, in any manner, affect their W.P.Nos.16121, 16127, 16129 & 16130 of 2020 24 alleged position as lease holders of the subject land. It is further submitted that under the proviso to Section 4(1) of the Talangana Abolition of the Inams Act, 1955, where Inams are held by or for the benefit of charitable and religious institutions, no person shall be entitled to be registered as an occupant under Sections 5, 6, 7 and 8 of the said Act and the concerned institution alone shall be entitled to be registered as an occupant of all Inam lands, other than the lands specified in Clauses (a) and (c) of Section 4 (1) i.e., lands set apart for the village community, grazing lands, mines and quarries, tanks, tank beds and irrigation works, streams and rivers, lands on which buildings have been erected, owned by the persons other than the Inamdars. He also referred to 2nd proviso to Section 4 to submit that it declares that where any person, other than the concerned charitable or religious institutions, has been registered as occupants under Sections 5, 6, 7 and 8 after the commencement of the Telangana Inams Abolition Act (Amendment Act), 1985, such registration shall and shall be deemed always to have been null and void and no effect shall be given to such registration. Therefore, according to the learned Senior Counsel, in respect of service inams where ORCs are already granted to persons other than the institutions, they are statutorily deemed to be void ab initio.
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 25 (3) The petitioners and the implead petitioners' failure to file declarations under the Land Reforms Act as land holders or cultivating tenants and also applications for the grant of ORC w.e.f. 01.11.1973 are circumstances which establish their awareness of lack of any right or legally protected interest over the subject land.
It is submitted that the petitioners or their predecessors have not filed the declarations under Section 8 of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 and that in terms of the aforesaid Act, persons in occupation of land are required to file declarations and failure to do so entails in a penalty of fine and or imprisonment of 2 years under Section 24 of the said Act. It is submitted that no explanation is forthcoming from the writ petitioners as to why the petitioners or their predecessors have not chosen to make applications claiming to be protected tenants in respect of land of various extents out of a total of more than Ac.1,200 at the relevant point of time when protected tenants of the neighboring villages and districts were filing applications for grant of ORCs under Section 7 of the Inams Abolition Act. It is submitted that the writ petitioners have submitted the applications for ORCs only in January, 2019. It is submitted that the W.P.Nos.16121, 16127, 16129 & 16130 of 2020 26 failure to file any declaration either by the petitioners or their predecessors indicates that they were aware that they have no claim for title. It is stated that neither the cultivating tenants nor the Maqtedars and pattedars have filed declarations under Section 8 of the Land Reforms Act and that these facts also go to show and indicate that the writ petitioners were aware that they have no claim for title. It is submitted that only the lands held by religious, charitable or educational institutions including the Waqf or lands of a public nature existing on the date of the commencement of the Act are exempt from its provisions as per Section 23(b) of the A.P. Land Reforms Act. He further referred to Joint Inspection Report of DMWO, Hyderabad and DMWO of R.R. District dated 27.05.2014 to submit that the petitioners and their predecessors though claim to be in possession of the subject land were aware that the lands are Waqf lands and their names are only recorded in the cultivation column and not as pattedars and only few of them are cultivating the lands and therefore, they cannot now claim any rights over the property at this distant point of time.
(4) The Waqf Board had been exercising the Rights of ownership over the subject lands since the beginning.
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 27 It is submitted that a portion or a part of the subject lands was sought to be acquired by APIIC in the year, 2006 for establishment of an industrial park and a notification under Section 4(1) of the Land Acquisition Act, 1894 was published in A.P. Gazette on 02.03.2006 and in the said notification, the land was described as Waqf property. It is submitted that even in the draft declaration issued under Section 6, by the District Collector also referred to the land as Waqf property and correspondence/communication relating to the acquisition were made with the Waqf Board. It is submitted that even though all these facts were within the knowledge of the general public including the petitioners herein and their predecessors, there were no claims or protests from them at the time of the land acquisition.
It is further submitted that the Waqf Board has constantly been complaining to the State authorities, more particularly, the Revenue authorities about the encroachments of the subject Waqf property and for issuance of proceedings and for assistance for dispossession of encroachers in terms of the Waqf Act, 1991. Thus, according to the learned Senior Counsel, these facts go to show that the Waqf Board has W.P.Nos.16121, 16127, 16129 & 16130 of 2020 28 been claiming and exercising its rights over the subject property since the beginning.
(5) Any Dispute as to whether the Inam Land was held by a Dargah would touch the character of Waqf property which alone can be decided only by the Waqf Tribunal constituted under Section 83 of the Waqf Act.
It is submitted that entries in the revenue records reflect the muthavallies as land holders and names of persons of whom the petitioners claim to be descendants, are shown as cultivating tenants and hence the issue as to whether lands are Waqf property or not can only be adjudicated by the Waqf Tribunal under Section 83 of the Waqf Act, 1985 and not this Court under Article 226 of the Constitution of India. Therefore, he submitted that these Writ Petitions have to be dismissed. In support of his contentions, he placed reliance upon the following decisions:
(i) Board of Wakf West Bengal Vs. Anis Fatma Begum 14
(ii) Rashid Wali Beg Vs. Farid Pindari (11 supra) 14 (2010) 14 SCC 588 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 29 (6) Due procedure was followed while issuing Impugned Gazette Notification notifying the subject lands as Waqf property.
Countering the arguments of the petitioners that no notices were issued to the concerned parties for conduct of survey under Section 4(3) of the Waqf Act, it is submitted that entire exercise of survey under Section 4(3) of the Waqf Act was undertaken between 1966 and 1967 with the assistance of revenue officials and local village officers after issuing the public notice by DHAPDA SATTI (beating of tom-tom) which was a recognized mode of publication. It is further submitted that the lands in question are located in interior villages with poor literacy and the best means of communications at that period of time would only be by a beat of drum and that the petitioners or their predecessors failed to raise any objection at the relevant point of time, thereby demonstrating acquiescence of having no right, title or legally protected interest in the property. Therefore, according to the learned Senior Counsel, the writ petitioners lack any enforceable claim over the lands in question. He placed reliance on the judgment of the Hon'ble Supreme W.P.Nos.16121, 16127, 16129 & 16130 of 2020 30 Court in the case of Rai Vimal Krishna Vs. The State of Bihar15 for the proposition that once mode of service is proved, the onus is on the persons to prove that they were not aware of the subject matter of notice. (7) Any irregularities in publication of the Gazette Notification would not alter the nature of the land being Waqf land.
Learned Senior counsel placed reliance upon the decision of Hon'ble Supreme Court in the case of V.Aruna Vs. State of Telangana16 for the proposition that the irregularities in publication of the Gazette Notification will not change the nature of the land. (8) The writ petition is not maintainable on the grounds of delay and laches.
Learned Senior Counsel submitted that the writ petitioners seek to challenge the Notification No.7-A dated 16.02.1989 issued by the Secretary of Andhra Pradesh State Waqf Board after lapse of more than a quarter century and that the petitioners failed to show sufficient cause for such inordinate and unexplained delay and hence it is hit by delay and laches. In support of this contention, the learned Senior Counsel 15 (2003) 6 SCC 401 16 2020 SCC online TS 3450 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 31 placed reliance upon the decision of the Hon'ble Apex Court in the case of Karnataka Power Corporation Ltd. Vs. K.Thangappan 17.
It is further submitted that since the writ petitions touch upon the nature and character of the subject land, the petitioners have to agitate their claim before the Waqf Tribunal constituted under Section 83 of the Waqf Act. Thus, according to the learned Senior Counsel, the writ petitions are not maintainable and have to be dismissed therefor. (9) Contention that RDO did not undertake any enquiry under Section 10 of the Inams Abolition Act and simply decided on the basis of the entries in the Revenue records is untenable and without merit.
It is submitted that under Section 10 of the Inams Abolition Act, an enquiry has to be conducted by the Collector for grant of an ORC and not by the RDO (Revenue Divisional Officer) and the nature of the land whether it is Waqf property or not can only be decided by the Waqf Tribunal. It is further submitted that RDO can only go by the entries in the revenue records and as per the Gazette Notification, the subject lands 17 (2006) 4 SCC 332 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 32 are Waqf lands as recorded in the Revenue Records. The learned Senior Counsel also placed reliance upon the decision of the A.P. High Court in the case of Yusuf Bagum Vs. Waqf Board and ors.18 in support of his contention that the writ petitioners have to approach the Waqf Tribunal for a decision on the nature of the subject land. He submitted that subsequent to the amendment of Section 6 of the Act by the Amendment Act of 2013, 'any person aggrieved' may also approach the Waqf Tribunal.
The learned Senior Counsel for the respondent Waqf Board also tried to distinguish the judgments relied upon by the writ petitioners and submitted that they are distinguishable on facts and law. He therefore prayed for dismissal of the writ petitions.
10. In reply and rebuttal of the above contentions of the learned Senior Counsel for the Waqf Board, the learned counsel for the petitioners submitted that Waqf Board's contentions regarding the subject property being Waqf property is untenable and particularly since the petitioners are not seeking adjudication of the question as to whether the subject property is Waqf property or not. It is submitted that without 18 (2010) 6 ALD 273 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 33 prejudice to the above contention, the petitioners further deny the authenticity of the muntakhab as filed. It is submitted that only a photocopy of the alleged document has been filed and it appears to be a fabricated document on the face of it because (i) the muntakhab makes no mention of the alleged dedication 250 years back as stated in paragraph No.5 of Waqf Board's counter, (ii) there is discrepancy as to the date on which the dedication was made, (iii) there is no mention of survey numbers in the muntakhab, (iv) non-matching of the extents in muntakhab and gazette notification, (v) non-mention of the purpose of burial/graveyard and performance of Urs in the muntakhab, which is otherwise stated in the Survey Report and counter, (vi) none of the pahanis even make a whisper about the muntakhab.
11. It is submitted that without prejudice to the above contentions and assuming without conceding that the muntakhab is genuine, it does not in itself confer title to the Waqf institution because all service inams were brought within the fold of the Inams Abolition Act by Amendment Act 29 of 1985 and consequently, all service inams stood abolished and were vested in the State by virtue of Section 3(1) of the Inams Abolition Act. It is submitted that even a Waqf institution is required to apply for W.P.Nos.16121, 16127, 16129 & 16130 of 2020 34 ORC as is evident from the language used in the provisos to Section 4(1) of the Inams Abolition Act and also as per the proviso to Rule 5 and Rule 6(3)(b) of the Inams Abolition Rules. He placed reliance upon the decisions of the Hon'ble Apex Court in the case of S.Mallesh and others Vs. Government of A.P. 19 in support of his above contention.
12. He also referred to Section 3 of the Telangana Atiyat Enquiries Act, 1952 to submit that all Muntakhabs are subject to the provisions of the Inams Abolition Act and the service Inam claimed by virtue of the muntakhab issued purportedly by the Atiyat authorities ceases to confer any right to the Waqf institution, since service inams themselves stood abolished and the subject property stood vested in the State by operation of Section 3(1) of the Inams Abolition Act. It is submitted that there is no averment that the Waqf institution has applied for ORC till date. It is submitted that the subject property was therefore not Waqf property even as on the date of impugned Gazette Notification in 1989 and by operation of law, the service inam granted through the alleged muntakhab also stood abolished and the subject property stood vested in the State.
19
2009 SCC OnLine AP 726 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 35
13. It is submitted that this Court, in similar circumstances, while setting aside similar Gazette notifications, has remanded the matter to the authorities under the Inams Abolition Act to decide the question of entitlement of ORC.
14. As regards the Waqf Board's contention regarding the petitioners' right over the subject property, the learned counsel for the petitioners submitted that in an application for ORC filed under Sections 4 to 8 of the Inams Abolition Act, the only requirement to be shown by the tenant is his occupation over the subject land on the crucial date i.e., 01.11.1973 and the revenue records have been relied upon to show continuous possession of the petitioners and their prececessors over the subject property from decades including on the crucial date and since the revenue records did not reflect that the subject property was Waqf property and there was no interference with the possession of the petitioners nor were any eviction suits filed against them by the Waqf institution, the question of the petitioners challenging it earlier than the impugned Memo dated 04.12.2019 does not arise and as soon as they came to know about it in the year 2019, they have filed the present writ petitions. It is submitted that the petitioners are poor farmers who relied W.P.Nos.16121, 16127, 16129 & 16130 of 2020 36 on the land for their livelihood and their property rights have been deprived by the impugned Gazette Notification and further the Waqf institution also has not applied for ORC and as such, no vested right of the Waqf institution is affected. In support of his above contentions, he placed reliance on the following decisions.
(i) Munawar Sultana Vs. Gosula Ramulu (4 supra)
(ii) Telangana State Waqf Board Vs. Solithro Pvt Ltd.20
(iii) N. Balakrishnan Vs. M. Krishnamurthy 21
(iv) B.T. Purushotthama Rai Vs. K.G. Uthaya 22
15. As regards the Waqf Board's contentions about the non- maintainability of the writ petition, the learned counsel for the petitioners relied upon the judgment of the Hon'ble Supreme Court in the case of L.Chandra Kumar Vs. Union of India and others (10 supra), wherein the power of judicial review under the Article 226 of the Constitution of India has been reiterated as the basic structure of the constitution which cannot be curtailed. It is submitted that even if there 20 2023 SCC OnLine TS 3817 21 (1998) 7 SCC 123 22 (2011) 14 SCC 86 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 37 is an efficacious, alternative remedy, that itself is not bar to entertain the writ petition if there is inter alia violation of principles of natural justice, violation of fundamental rights and absence of jurisdiction etc. He further relied upon the following other judgments in support of his contentions.
(i) L.Chandra Kumar Vs. Union of India and others (10
supra)
(ii) State of A.P. Vs. A.P. Wakf Board23
(iii) Rashid Wali Beg Vs. Farid Pindari (11 supra)
(iv) Telangana State Waqf Board Vs. Solithro Pvt Ltd. (20 supra)
(v) Board of Muslim Wakfs Vs. Radha Kishan (8 supra)
(vi) Punjab Wakf Board Vs. Gram Panchayat (9 supra)
(vii) Munawar Sultana Vs. Gosula Ramulu (4 supra) 23 (2022) 20 SCC 383 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 38
16. As regards the contentions raised by the respondents regarding the grounds raised in the Writ Petitions regarding the legal infirmities in the impugned Gazette Notification, the learned counsel for the petitioners submitted that the petitioners have statutory right to be issued ORC by virtue of being the tenants in possession for several decades including on the crucial date i.e., 01.11.1973. He also tried to distinguish the judgments relied upon by the learned Senior Counsel appearing for the Waqf Board as not applicable to the facts of cases on hand. Findings of the Court:-
17. Having regard to the rival contentions and the material placed on record, this Court finds that the respondents have raised preliminary objections as to the maintainability of the writ petition on the grounds of
(i) delay and laches; and (ii) the availability of an alternative remedy before the Waqf Tribunal under Section 6 of the Waqf Act. Insofar as the objection relating to delay and laches is concerned, learned counsel for the petitioners submitted that the petitioners were not aware of either the survey under Section 4(3) or the notification dated 16.02.1989, and that it was only upon issuance of the impugned Memo dated 04.12.2019 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 39 that they gained knowledge of the same, following which, they promptly filed the present writ petitions. In support of the above contentions, reliance has been placed by the learned counsel for the petitioners on the judgment of this Court in Telangana State Waqf Board Vs. Solithro Private Limited (20 supra). The relevant paragraphs of the above judgment are extracted hereunder for ready reference:-
"23. It is trite law that extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is discretionary in nature and question of delay and laches in all kinds of cases would not disentitle a party to invoke the jurisdiction under Article 226 of the Constitution of India. It is well settled legal principle that if an order is a nullity, its validity could be set up whenever and wherever it is sought to be enforced or relied upon. It is equally well settled legal position that test while ascertaining the delay, is not of physical running of time and when circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches (see Dehri Rohtas Light Railway Company Limited v. District Board, Bhojpur²). In Maharashtra Industrial Development v. Tukaram Kana Joshi Corporation 21, the Supreme Court dealing with the issue of delay in approaching the Court under Article 226 of the Constitution of India has held as under:
13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of W.P.Nos.16121, 16127, 16129 & 16130 of 2020 40 limitation for the courts to exercise their powers under Article 226, nor is it that there can never be a case where the courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable. (Vide P.S. Sadasivaswamy v. State of T.N. [(1975) 1 SCC 152: 1975 SCC (L&S) 22: AIR 1974 SC 2271], State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566: AIR 1987 SC 251] and Tridip Kumar Dingal v. State of W.B. [(2009) 1 SCC 768: (2009) 2 SCC (L&S) 119]).
14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably.
In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm Innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Chief Controller of Imports and Exports ((1969) 1 SCC 185: AIR 1970 SC 769], Collector (LA) v. Katiji [(1987) 2 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 41 SCC 107: 1989 SCC (Tax) 172 : AIR 1987 SC 1353], Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [(1992) 2 SCC 598: AIR 1993 SC 802], Dayal Singh v. Union of India [(2003) 2 SCC 593 AIR 2003 SC 1140] and Shankara Coop. Housing Society Ltd. v. M. Prabhakar [(2011) 5 SCC 607: (2011) 3 SCC (Civ) 56: AIR 2011 SC 2161]).
24. The principle laid down in Tukaram Kana Joshi (supra) has been quoted with approval in Union of India v. N. Murugesan22. Thus, the issue of delay has to be decided on the basis of facts and circumstances of each case.
25. In the instant case, in reply to paragraphs 12 and 13 of the affidavit filed in support of the writ petition, the Wakf Board has taken an objection with regard to delay and laches. The relevant extract of the aforesaid reply reads as under:
26. Since the period of one year has been elapsed it is for the Wakf Tribunal to adjudicate the suit challenging the notification on merits. The petitioner instead of approaching to Wakf Tribunal established under Section 83 of the Wakf Act, 1995 directly approached this Hon'ble Court under Article 226 of the Constitution of India after more than 14 years from the date of publication of Gazette on the ground of alleged violation of principles of natural justice which is hit by delay and latches, as such it is not open to the petitioner to invoke the extraordinary special original jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India after more than 14 years from the date of publication of Gazette, further the issues involved in the present case are disputed question of fact to be decided and proved at the appropriate forum, the Wakf Tribunal. As such, the petitioner has got alternative remedy under Section 83 of the Wakf Act, 1995, as held by the Hon'ble Supreme Court in Board of Wakf, West Bengal v. Anis Fatima W.P.Nos.16121, 16127, 16129 & 16130 of 2020 42 Begum [(2010) 14 SCC 588], as such the above writ petition is liable to be dismissed.
27. The company had purchased the subject lands in an auction held on 26.12.2013 and 13.08.2014. The sale certificates were also issued in favour of the company. Thereupon, it initiated attempts to seek mutation of its name in the revenue records and learnt about the notification dated 15.11.2001. Thereafter, the writ petition was filed on 05.11.2014. Therefore, in the facts and circumstances of the case, we hold that the writ petition does not suffer from delay and laches disentitling the petitioner to invoke the jurisdiction under Article 226 of the Constitution of India. Accordingly, the third issue is answered.
28. Before proceeding further, it is apposite to take note of Section 6 of the 1995 Act as it stood prior to Amendment by Amendment Act No.27 of 2013 dated 01.11.2013.
6. Disputes regarding Wakfs:- (1) If any question arises whether a particular property specified as Wakf property in the list of Wakfs is wakf property or not or whether a Wakq specified in such list is a Shia Wakf or Sunni Wakf, the Board or the Mutawalli of the Wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final;
Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of Wakfs:
Explanation:- For the purposes of this section and section 7, the expression "any person interested therein", W.P.Nos.16121, 16127, 16129 & 16130 of 2020 43 shall, in relation to any property specified as wakf property in the list of wakfs published after the commencement of this Act, shall include also every person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4.
(2) Not withstanding anything contained in subsection (1), no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit.
(3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him 32 in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.
(4) The list of Wakfs shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive.
(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court in that State in relation to any question referred to in sub-
section (1).
29. Thus, it is evident that dispute whether or not property is a wakf property in the list of wakfs and whether the same belongs to Shia or Sunni wakf, the Board or the Mutawalli of the wakf or any person W.P.Nos.16121, 16127, 16129 & 16130 of 2020 44 interested therein may institute a suit in a Tribunal for adjudication of the aforesaid question. Section 6 has to be read with Section 3(k) of the Act which defines the expression 'person interested in a wakf' and reads as under:
3 (k) "person interested in a wakf" means any person who is entitled to receive any pecuniary or other benefit from the wakf and includes-
(i) any person who has a right to workship or to perform any religious rite in a mosque, idgah, imambara, dargah, khanqah, peerkhana and karbala, maqbara, graveyard or any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf; 33
(ii) the wakif and any descendant of the wakf and the Mutawalli;
30. Thus, if provisions of Section 6 and 3(k) of the Wakf Act, 1995, prior to its Amendment, are read in conjunction, it is evident that a person interested in the wakf alone could have resorted to the remedy under Section 6 of the 1995 Act. However, subsequently by Amendment Act No. 27 of 2013 dated 01.11.2013, the words 'any person interested' had been substituted by 'any person aggrieved'. The Supreme Court in Rashid Wali Beg (supra) dealt with the issue whether suit seeking the relief of perpetual and mandatory injunction in respect of a property admitted to be the wakf property before the civil court is maintainable. The aforesaid issue was answered in the negative and in paragraph 47 and 68, it was held as under:
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 45
47. The upshot of the above discussion is that the basis of Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 (2010) 3 SCC (Civ) 553] now stands removed through Amendment Act 27 of 2013. In fact, when Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726: (2010) 3 SCC (Civ) 553] was decided, Sections 6(1) and 7(1) enabled only three categories of persons to approach the Waqf Tribunal for relief. They are, (i) the Board;
(ii) the mutawalli of the waqf; or (iii) any person interested therein. However, the Explanation under Section 6(1) clarified that the expression "any person interested therein" shall include every person, who, though not interested in the waqf, is interested in the property. But by Act 27 of 2013 the words, "any person interested" were substituted by the words, "any person aggrieved", meaning thereby that even a non-Muslim is entitled to invoke the jurisdiction of the Tribunal. Due to the substitution of the words "any person aggrieved", Act 27 of 2013 has deleted the Explanation under 6(1). This amendment has also addressed the concern expressed in Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726: (2010) 3 SCC (Civ) 553] (in para 21 of the SCC report) whether a non-Muslim could be put to jeopardy by the bar of jurisdiction, merely because the property is included in the list of waqfs. We must point out at this stage that the Explanation under sub-section (1) of Section 6, as it stood at the time when Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726: (2010) 3 SCC (Civ) 553] was decided, already took care of this contingency, but was omitted to be brought to the notice of this Court.
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 46
68. The dichotomy created in some decisions of this Court, between the properties which are admitted to be waqf properties and properties which are disputed to be so, is on account of the misapplication of the two limited questions in Sections 6(1) and 7(1) to the whole of the Act including Section 83. At the cost of repetition we should point out that Section 83(1) provides for the determination of any dispute, question or any other matter, (i) relating to a waqf and (ii) relating to a waqf property. This prescription cannot be taken to have been curtailed or circumscribed by Sections 6(1) and 7(1), to come to the conclusion that the Tribunal will assume jurisdiction only when a property is disputed to be a waqf property.
31. The decision in Rashid Wali Beg (supra) was considered by the Supreme Court in State of Andhra Pradesh (Now State of Telangana v. Andhra Pradesh State Wakf Board 23. The relevant extract of paragraph 105 reads as under:
105. In Rashid Wali Beg, this Court examined all the previous judgments on the question as to whether any property is a wakf property or not is triable exclusively by the Wakf Tribunal but the judgments discussed therein pertained to the invocation of the jurisdiction of the Civil Court or of the Wakf Tribunal. None of the judgments dealt with the invocation of the jurisdiction of the writ court. Board of Wakf, West Bengal v. Anis Fatma Begum ((2010) 14 SCC 588) is again not a judgment arising out of a writ petition filed before the High Court. It was a case of a suit filed before the Civil Court, though in Para 7, there is an observation that all matters pertaining to wakf should be filed in the first instance before the Tribunal and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 47 of the Constitution. The observation made by this Court in respect of invocation of the jurisdiction of the writ court is clearly obiter as that was not the question arising for consideration.
32. Thus, it is evident that the decision of Supreme Court in Rashid Wall Beg (supra) does not deal with the invocation of jurisdiction of a writ court.
33. However, the alternative remedy has been held by Supreme Court not to operate as a bar in at least three contingencies, namely (1) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (ii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged (see Whirlpool Corporation v. Registrar of Trade Marks, Mumbai 24 and Harbanslal Sahnia v. Indian Oil Corporation).
The Supreme Court in Radha Krishan Industries v. State of Himachal Pradesh 26, while dealing with exercise of jurisdiction under Article 226 of the Constitution, when an alternative remedy is available to a party, held as under:
27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where:
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 48
(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or Constitution. This rule of exhaustion of statutory remedies is a before invoking the discretionary remedy under Article 226 of the rule of policy, convenience and discretion.
27.6. In cases where there are disputed questions of fact, High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.
34. The aforesaid view was reiterated with approval in Maharashtra State Board of Wakfs (supra).
35. In the case in hand, the impugned notification dated 15.11.2001 is void as the same has been issued under the provisions of the repealed Act. Therefore, the instant case falls within the exceptions carved out by the Supreme Court in Whirlpool Corporation (supra) and Harbanslal Sahnia (supra) and the writ petition has rightly been W.P.Nos.16121, 16127, 16129 & 16130 of 2020 49 entertained, notwithstanding the availability of an alternative remedy. Therefore, in the facts of the case, it is not necessary to relegate the petitioner to alternative remedy. Accordingly, the fourth issue is answered in the affirmative by stating that notwithstanding the alternative remedy, the writ petition can be entertained."
18. Further, in the case of Munawar Sultana and others Vs. Gosula Ramulu and others (4 supra), a Division Bench of this Court has held as under:
"Issue (2): Whether on the basis of the enquiry report dated 07.08.1965, a notification after a period of 41 years declaring the subject land to be wakf property can be issued under Section 5 of the Wakf Act, 1995?
31. Section 4(3) of the 1954 Act does not provide for a time limit within which the Commissioner after conducting the enquiry, has to submit the report to the State Government. It is equally true that Section 5 of the Act does not provide for time limit for issue of publication of list of wakfs. However, the Commissioner of Wakfs and the Wakf Board exercise the statutory function while preparing the enquiry report and publishing the same as list of wakfs under Sections 4 and 5 of the Act respectively. A mere survey carried under Section 4 of the 1954 Act does not extinguish the rights in a property. It is only on publication of notification under Section 5(2) of the Act, the rights of a person in a property are extinguished. Therefore, the statutory powers have to be exercised within a reasonable period as rights in a property may accrue after survey which may get extinguished on publication of the survey.
32. Even otherwise, it is trite law that where a statute does not provide for time limit for doing an act, such an act has to be done within W.P.Nos.16121, 16127, 16129 & 16130 of 2020 50 a reasonable time, and what would be reasonable time has to be decided in the facts and circumstances of the act (See:Meher Rusi Dalal vs. Union of India [(2004) 7 SCC 362], P.K.Sreekantan vs. P.Sreekumaran Nair [(2006) 13 SCC 574] and K.B.Nagur vs. Union of India [(2012) 4 SCC 483].
33. The Supreme Court in the State of Andhra Pradesh now the State of Telangana vs. Andhra Pradesh Wakf Board (2022 SCc OnLine SC 159) has disapproved the action of issuing an errata notification after a lapse of 17 years from the date of first notification.
34. In the instant case, the enquiry report was prepared on 07.08.1965 whereas the notification under Section 5 of the Act dated 27.07.2006 has been issued after a period of 41 years. The notification dated 27.07.2006 extinguishes the rights of the persons in the subject property. The statutory powers have to be exercised within a reasonable time. In the instant case, the notification dated 27.07.2006 which has the effect of extinguishing the rights of individuals in the property has been issued after an inordinate delay of 41 years for which no explanation has been offered. The exercise of statutory powers after a period of 41 years without any explanation for the same cannot be said to be exercise of statutory powers within a reasonable time and therefore, the same is vitiated in law. Accordingly, the second issue is answered.
Issue (3): Whether issue with regard to validity of the notification dated 27.07.2006 issued by the Wakf Board can be examined by the Wakf Tribunal under the then Section 6 of the Wakf Act, 1995 in vogue at the relevant time?
36. Thus, it is evident that dispute whether or not property is a wakf property in the list of wakfs and whether the same belongs to Shia or Sunni wakf, the Board or the Mutawalli of the wakf or any person W.P.Nos.16121, 16127, 16129 & 16130 of 2020 51 interested therein may institute a suit in a Tribunal for adjudication of the aforesaid question. Section 6 has to be read with Section 3(k) of the Act which defines the expression 'person interested in a wakf' and reads as under:
3 (k) "person interested in a wakf" means any person who is entitled to receive any pecuniary or other benefit from the wakf and includes-
(i) any person who has a right to workship or to perform any religious rite in a mosque, idgah, imambara, dargah, khanqah, peerkhana and karbala, maqbara, graveyard or any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf;
(ii) the wakif and any descendant of the wakf and the Mutawalli;
37. Thus, if provisions of Section 6 and 3(k) of the Wakf Act, 1995, prior to its Amendment, are read in conjunction, it is evident that the petitioners are not the persons interested in a wakf. It is pertinent to mention that at the relevant point of time when the notification was issued on 27.07.2006, the petitioners could not have availed of the remedy under Section 6. However, subsequently by Amendment Act No.27 of 2013 dated 01.11.2013, the words 'any person interested' had been substituted by 'any person aggrieved'. But, at the relevant time, the remedy of filing a suit before the Wakf Tribunal was not available to the petitioners. Accordingly, the third issue is answered in the negative.
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 52 Issue (4): Whether issue with regard to validity of the notification dated 27.07.2006 can be examined in a writ petition under Article 226 of the Constitution of India?
38. A three-Judge Bench of the Supreme Court in Babubhai Muljibhai Patel vs. Nandlal Khodidas Barot [(1974) 2 SCC 706] held that the High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Article 226,the High Court has jurisdiction to try issues both of fact and law. In paragraph 9, it was held as under:
9. On behalf of the appellant his learned counsel, Mr. Amin, has at the outset contended that as the dispute between the parties in this case involved questions of fact, the High Court should not have entertained the writ petition filed by Respondent 1 but should have referred the parties to a separate suit. This contention, in our opinion, is not well founded. No plea was admittedly taken in the return filed on behalf of the appellant in reply to the writ petition that Respondent 1 should be directed to seek his remedy 35 (1974) 2 SCC 706 by means of a suit because of disputed questions of fact. In the absence of such a plea, the appellant, in our opinion, cannot be heard to say that the High Court should have relegated Respondent 1 to the remedy of a suit. Apart from that we find that the term of the appellant as the President of the municipality would have expired in 1975. The trial of a suit, in the very nature of things, would have taken considerable time. Appeal and second appeal would have also been filed by the unsuccessful party in the case. Had Respondent 1 been directed to seek his remedy by way of a suit, the relief secured by Respondent 1 even if he had succeeded in the suit W.P.Nos.16121, 16127, 16129 & 16130 of 2020 53 would have been wholly illusory because by the time Respondent 1 would succeed in the litigation, the term of the office of the President would have either already expired or be about to expire. The appellant in that event would have continued as the President of the municipality even though he had ceased to enjoy the confidence of the requisite number of councillors and they had passed a motion of no confidence against him. The entire concept of a democratic institution would thus have been set at naught. We agree with the observations of the High Court that the purpose underlying the petition would have been completely defeated in case Respondent 1 had been relegated to the ordinary remedy of a suit and that such remedy was neither adequate nor efficacious.
39. The power of this Court under Article 226 of the Constitution of India can be exercised not only for enforcement of fundamental rights but for any other purpose as well. In the State of Andhra Pradesh now the State of Telangana vs. Andhra Pradesh Wakf Board (supra), the High Court had relegated the parties to an alternative remedy of filing a regular suit before the Wakf Tribunal. The Supreme Court in paragraph 116 held that the High Court erred in law to relegate the parties to the statutory remedy. Paragraph 116 reads as under:
116. We find that the High Court has examined the merits of the contention raised including the documents filed so as not to accept the contentions of the State. Though the High Court has expressed the same to be prima facie view, but in fact, nothing was left to suggest that it was not a final order as far as the State is concerned with the order of the dismissal of its writ petition.
Even otherwise, we find that the questions raised before this Court are the interpretation of the statues, the Farmans issued by W.P.Nos.16121, 16127, 16129 & 16130 of 2020 54 Sovereign from time to time and the interpretation of the document to the facts of the present case. It is not a case where any oral evidence would be necessary or is available now. In fact, that was not even the suggestion before this Court. Since the question was in respect of interpretation of the statutes and the documents primarily issued by the Sovereign, the matter needs to be examined on merits as detailed arguments have been addressed by learned counsel for the parties. Thus, we find that the High Court erred in law, in the facts and circumstances of the case, to relegate the parties to the statutory remedy.
40. An enquiry report as well as the notification were issued in exercise of statutory powers under Sections 4 and 5 of the Wakf Act. In the instant case, no disputed question of fact arises for consideration. Therefore, in the facts and circumstances of the case, we are of the view that issue with regard to the validity of the notification dated 27.07.2006 which does not depend on determination of any disputed questions of fact could have been examined by the learned Single Judge in writ petitions under Article 226 of the Constitution of India. Accordingly, the fourth issue is answered."
19. On the other hand, the respondent Waqf Board had relied upon the decision of the Hon'ble Supreme Court of India in the case of Karnataka Power Corporation Ltd. Vs. K.Thangappan (17 supra) on the ground of delay and laches. The relevant para is as under:-
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 55 "6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party."
20. As regards the delay, the Hon'ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishna Murthy (21 supra), has held as under:
"11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 56
12. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumar [AIR 1969 SC 575 :
(1969) 1 SCR 1006] and State of W.B. v. Administrator, Howrah Municipality [(1972) 1 SCC 366 : AIR 1972 SC 749].
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss." This judgment was followed and the principle laid down has been reiterated in the case of B.T. Purushothama Rai Vs. K.G. Uthaya and others (22 supra).
21. On the ground of alternative remedy of Waqf Tribunal, the respondent Waqf Board has relied upon the decision of a Division Bench W.P.Nos.16121, 16127, 16129 & 16130 of 2020 57 of this Court in the case of Yusuf Bagum Vs. Waqf Board and ors. (18 supra), wherein it was observed thus:
"If it is a service inam the question of the petitioner getting the absolute title would not arise in view of the proviso to Section 4(1) of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. Therefore, even if the property was initially brought into the custody of the Wakf Board pending the dispute, the Wakf Board cannot be compelled to abdicate their duties to protect the property of the Institution in view of Sections 27, 32 and 40 of the Wakf Act. Furthermore, admittedly the petitioner or her predecessors never filed any declarations under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 or the Urban Land Ceiling and Regulation) Act, 1976.
The dispute raised in this writ peittion is one of fact. Secondly, when the land is claimed by the Wakf Board, such dispute has to be resolved by the Wakf Tribunal constituted under the Wakf Act. The remedy provided under Section 83(2) of the Wakf Act is the effective alternative remedy as held by this court in M. Bikshapathi v Government of Andhra Pradesh [1], Alluddin Charities and Zakath Wakf v Hameed Ali [2] and Syed Muneer v Chief Executive Officer, A.P. State Wakf Board [3]. Further, if the relief as claimed is granted it would amount to compelling the Wakf Board to relinquish their right to manage the wakf property and also to compel them to abdicate their duty under various provisions of the Wakf Act. Such a writ cannot be issued by this Court. The petitioner is, therefore, given liberty to avail the remedy before the Wakf Tribunal."
22. Having gone through the decisions relied upon by both the parties, this Court is inclined to agree with the writ petitioners about the W.P.Nos.16121, 16127, 16129 & 16130 of 2020 58 maintainability of the writ petition. The Division Bench of this Court in the case of Yusuf Bagum Vs. Waqf Board and ors. (18 supra) has considered all the precedents on the issue to come to the conclusion about the maintainability of the writ petition provided the delay is properly explained by the petitioners. In this case, though the Waqf Board claims that the subject land belongs to the Waqf institution and the possession of the petitioners over the subject land is also acknowledged in the alleged survey report, it never interfered with the possession of the petitioners and therefore, there could not have been any cause of action or occasion for the petitioners to approach any forum for redressal of their grievance. The petitioners have thus explained the reasons for the delay in challenging the impugned Gazette Notification and therefore, the ground raised by the respondents against the maintainability of the writ petition is rejected. As regards delay as well as the availability of remedy before the Waqf Tribunal also, a Division Bench of this Court in the case of Telangana State Waqf Board Vs. Solithro Private Limited (20 supra) has dealt with the issue extensively and this Court is thus inclined to hold that the writ petition is maintainable.
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 59
23. Another angle to be considered on this issue is the service of notices prior to survey and the respondents have contended that the notices are served through beat of tom tom. In the survey report also, it is observed that the subject property is in occupation of several Kauldhar/tenants. However, in the survey report, there is no reference to any notice issued to the tenants. In view of the same, it cannot be presumed that the petitioners were issued notice and that they were aware of the survey allegedly conducted in 1966-67 or the Gazette Notification issued by the respondents in the year 1989, i.e., after 23 years of the alleged survey. Further, there was also no action taken by the Waqf Board to get the petitioners evicted from the land when it is claiming the subject property to be the Waqf property. Therefore, there was no action by the respondents necessitating the petitioners to be aggrieved to challenge the notification. Hence, this Court is of the opinion that the grounds of delay and latches cannot come in the way of the petitioners in challenging the notification whenever it has come to their knowledge. Further delay and latches can never mean to defeat the cause of substantial justice and Courts are inclined to take a stand towards upholding the rights of the parties rather than the technicalities W.P.Nos.16121, 16127, 16129 & 16130 of 2020 60 of delay. The Hon'ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishna Murthy (21 supra) has clearly held that the words 'sufficient cause' should be construed liberally and the acceptability of the explanation for the delay is the sole criterion and the length of the delay is not relevant. It is also pertinent to note that even after 3 decades of issuance of Impugned Notification, the petitioners are continuing their uninterrupted possession over the subject land and most of the land is cultivated physically and same is also reflected in the pahanies for the relevant years. Therefore, the ground of delay is rejected. As regards the second ground about the alternative remedy before the Waqf Tribunal is concerned, the petitioners have stated that they are primarily aggrieved by the impugned Notification because it was the sole basis on which the Impugned memo was issued by the respondent No.4. It is submitted that the question before the Court is not whether the subject land is Waqf land or not but it is whether the notification was issued by following due process of law. Therefore, according to the learned counsel for the petitioners, the writ petition is maintainable before this Court and the petitioners need not approach the Waqf Tribunal for redressal of their grievance. Section 6 of the Waqf Act reads as under:
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 61 "The first proviso of Section 6 of the Waqf Act prohibits the entertainment of any suit by the Tribunal after the expiry of one (01) year from the date of publication of the list of Wakfs under sub-section (2) of Section 5"
Therefore, the alternative remedy suggested by the learned Senior Counsel for the Waqf Board is not available to the petitioners. Further the Waqf Tribunal does not possess the power to declare the notification as invalid and the challenge in this writ petition is to the validity of Gazette Notification itself. This issue is also covered by the latest decision of this Court in the case of Munawar Sultana and others Vs. Gosula Ramulu and others (4 supra). Therefore, the preliminary objection with regard to the availability of the alternative remedy is also unsustainable and is accordingly rejected.
24. Coming to the merits of the Writ Petitions and the contentions of the petitioners, the first ground is that petitioners and their predecessors are in possession of the subject property for a very long time particularly on the crucial date under the Telangana Abolition of Inams Act, 1955 i.e., 01.11.1973. Their names were reflected in all corresponding pahanies and there has been no challenge to such entries in the revenue record. Respondent No.1 also has not denied the same in his counter W.P.Nos.16121, 16127, 16129 & 16130 of 2020 62 affidavit. The only ground raised by the Waqf Board is that it is service Inam land granted vide File No.29/56 Atiyath Inam for the year, 1350 Fasli (1940 AD), Taluka Shahabad, Hyderabad District issued by injunction on 20.11.1951. The copy of the Munthakhab is filed at page Nos.21 to 23 of the counter affidavit filed by the Waqf Board. It is the Xerox copy in Urdu. The translated copy in English is extracted hereunder:-
"COPY OF MUNTHAKHAB ISSUED BY THE OFFICE OF THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT (PRELIMINARY ATIYATH BRANCH) Proceedings Name of Name of the Name of the present claimant What is the No. of the Taluka person whose with father's name, residence, relation of Inam Dept. OR and name is age and occupation etc. the present the No. of the District recorded in the claimant with statement of official records the person Dist. or Inam whose name Pathrak is recorded in the official records.
1. 2. 3. 4. 5.
Filing Taluka SHAIK First lot:- Grandsons
No.29/56 Shahabad
MAKHDOOM ABU MOHAMMED son of and grand-
Atiyath Inam Grandson of Shaikh Mohiuddin daughter of
Medak for the District CLAIMANT No.1
MULLA the fifth
year 1350 F. Hyderabad MASOOD generation
Second Lot:-
SAHEB HUSSAINI
son of Minallah Hussaini
CLAIMANT No.2
with the subordinate sharers
(Shikmi) of KHAJA
HUSSAINI, MUSTAFA
W.P.Nos.16121, 16127,
16129 & 16130 of 2020
63
HUSSAINI brothers, AKBER
HUSSAINI,
SAMADALLAH
HUSSAINI, NOORUDDIN
and MOHIUDDIN BEE
SAANI (second)
Third lot:- SAMULLAH son
of huthiullah CLAIMANT
No.3, with the subordinate
sharer HASSANULLAH
brother.
Details of Maash (Source of Income) Condition of Grant
6. 7.
Details of Maash - Inam Land and Makhta Ibrahim Shahpur alias Mullaguda situated at Village Aloor, Taluka Shahabad - District Hyderabad.
Rs.1,784-08-00
886 acres & 2 guntas 246 Bigas CONDITIONAL
OF THE
Rs.1,582-08-00 Rs.202-00-00 PERFORMANCE OF
THE SERVICE OF
First lot possessed by Abu Mohammed alias Mian Saheb Patti Mangal DARGH HAZRATH
MAKHDOOM
508 acres & 12 guntas BIYABANI
with the Assessment of Rs.951-00-00 Qada-Sirrahul-Aziz.
Deduction: 79-11-09 Pan: 47-08-00 Local Fund: 31-03-09
873-04-03
Second lot: Possessed by Akber Hussaini and Samadullah Hussaini and Saheb Hussaini and Khaja Hussaini and others 377 acres & 30 guntas with the assessment of Rs.631-08-00 Deduction: 91-05-06 Pan: 47-08-00 Local Fund: 27-05-06 540-02-06 Tamarind trees: 12 Nos. Amraee clump: 50trees W.P.Nos.16121, 16127, 16129 & 16130 of 2020 64 Sendhi trees: 2000 Nos.
Third lot: Possessed by Samiullah S/o. Muthiullah Patti Chanchalam 246 bigas with the assessment of Rs.202-00-00 Sd/-Syed Zainulabedeen Saheb, Madadgar Atiyath Sd/- Mohd. Ahmed Ali Seghedar Sd./- Mohd. Sayeeduddin Saheb 10/11/51 A.D. Final Order Details of enclosures of Asnaad etc. 8 9 As per the opinion of the Estate of Sarf-e-Khas and the Hon'ble Committee of Appellate of Government of Hyderabad, the Inam Land and Makhta Ibrahim Shahpur mentioned in Clumn No.(6) with the recovery of the fixed pan, within the Old Limits, is restored and released FOREVER IN FAVOUR of the Claimants mentioned in the Column No.(4) with the CONDITION of the performance of the Service of the Dargah at the ratio of third of thirds. Samadullah Hussaini who has obtained the SANAD from the Hon'ble High Court, shall perform the Service. The Maash is divided into three lots from the past, that shall remain continued as it is, other sources of income shall remain subject to the land. The claimants shall continue to be benefitted from the Revenue of the Excise (Aabkari) and shall get the arrears from the date of discontinuation.
Sd/-
Maulvi Ghulam Dastagir Saheb Superintendent, Atiyath Sd/-
Janab Syed Ahmed Saheb Madagar Atiyath Sd/-
Janab Abid Ali Khan Saheb Nazim Atiyath 27 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 65 No. of Execution Branch of District Hyderabad Forwarded this Munthakhab with endorsement copy for compliance and execution to the Awal Talukdar (Collector) District Hyderabad, and to state that while acting according to this order, this Department be intimated about the result of the Thameel (execution) and the date of the receipt of the Claimants.
1. Copy forwarded to the Revenue Secretariat of the Govt. for record. Date: 20th November, 1951 A.D. Sd/-
Janab Syed Ahmed Saheb Madadgar Atiyath Sd/-
Aalijanab Abid Ali Khan Saheb Nazim Atiyath /TRANSLATED WITHOUT PREJUDICE BY/ (SYED MUSTAFA ALI) ........
Sunbeam Jobwork Centre ..........
..........
Nampally, Station Road, HYDERABAD "
If the above Munthakhab is given effect to, the names of persons in the above Column should be reflected in pahanies of the subject property. The copies of sethwar of Aloor-I, II and III and copies of khasra pahanies for the years 1954-55, 1955-56 to 1957-58 only are filed along with the counter affidavit. The respondents, however, have not filed copies of pahanies for any of the years nor are the names of the said persons recorded in revenue records as pattedars or occupiers or W.P.Nos.16121, 16127, 16129 & 16130 of 2020 66 possessors or title holders of the subject property. On the other hand, the petitioners have filed copies of the pahanies for subsequent years, wherein the names of the forefathers of the petitioners and thereafter the petitioners are reflected as possessors of the subject land and the pahanies are up to 2014-15. Therefore, the contentions of the petitioners that they are in possession of the subject property has not been disproved by the respondents with any documentary evidence.
25. The next question that arises for consideration is whether the impugned Gazette Notification dated 16.02.1989 was issued in accordance with the provisions of the Waqf Act, 1954. The respondents contend that the subject land is a service Inam. However, it is pertinent to note that the said expression is not defined under the Waqf Act. In this context, reference is made to the Section 2(c) and (d) of the A.P. (Telangana Area) Abolition of Inams Act, 1955, which defines 'inams' and 'inamdar' as under:
"(c) 'inam' means land held under a gift or a grant made by the Nizam or by any Jagirdar, holder of a Samsthan or other competent grantor and continued or confirmed by virtue of a muntakhab or other title deed, with or without the condition of service and coupled with the remission of the whole or part of the W.P.Nos.16121, 16127, 16129 & 16130 of 2020 67 land revenue thereon and entered as such in the village records and includes--
(i) Arazi maktha, arazi agrahar and seri inam, and
(ii) lands held as inam by virtue of long possession and entered as inam in the village records :
Provided that in respect of former Jagir areas the expression inam shall not include such lands as have not been recognized as inams by Government after the abolition of the Jagirs."
"(d) 'inamdar' means a person holding as inam or a share therein, either for his own benefit or in trust and includes the successor in interest of an inamdar, and -
(i) where an inamdar is a minor or of unsound mind or an idiot, his lawful guardian,
(ii) where an inamdar is a joint Hindu family, such joint Hindu family."
Clause (h) defines 'permanent tenant' as under:
"(h) 'permanent tenant' means a person who, from a date prior to 10th June, 1950, has been cultivating the inam land on a permanent lease from the inamdar whether under an instrument or an oral agreement."
Clause (j) defines 'protected tenant' as under:
"(j) 'protected tenant' means the protected tenant as defined in the Hyderabad Tenancy and Agricultural Lands Act, 1950."
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 68
26. Reference is made to the provisions of the A.P. (Andhra Area) Inams (Assessment) Act, 1955, which was applicable to all inams in the State of Andhra Pradesh, particularly Sections 4 and 5 thereof, which deal with service Inams and the consequences of their abolition. The said provisions also recognize the power of the State Government to resume any Inam in accordance with the rules and orders in force. In this context, the relevant provisions, Sections 4 and 5 thereof, are extracted hereunder:-
"4. Presumption in the case of Service Inams:- In the case of an inam granted for the purpose of any service, it shall be presumed, in the absence of evidence to the contrary, that the inam consists not merely of an assignment of land revenue payable in respect of the land but also of the land."
"5. Resumption of Service inams:- Nothing contained in this Act shall be deemed to affect the power of the State Government to resume any inam in accordance with the rules and orders in force."
27. Therefore, according to the learned counsel for the petitioners, even if it is to be accepted that vide File No.29/56 Atiyath Inam for the year, 1350 Fasli (1940 AD), Taluka Shahabad, Hyderabad District, the land has been assigned as Service Inam, by virtue of the A.P. (Telangana Area) Abolition of Inams Act, 1955, the inam gets extinguished unless W.P.Nos.16121, 16127, 16129 & 16130 of 2020 69 the institution makes an application and is registered as an occupant of the Inam land under the proviso of Section 4 of the said Act where the Inams are held by or for the benefit of charitable and religious institutions. It is only the institution which shall be entitled to be registered as an occupant of all Inam lands and the individual persons shall not be entitled to be registered. However in the Kashra Pahanies filed by the respondent up to 1954-55 i.e., prior to the A.P. (Telangana Area) Abolition of Inams Act, 1955, the alleged Mutawalis of the service inams are mentioned as title holders and their names continued as title holders in the subsequent pahanies as well. Therefore, the entries in the revenue records cannot be said to be in accordance with the provisions of Abolition of Inams Act, 1955. It is also observed from the statement of objects and reasons of the Act VIII of 1955 that the Bill provided for abolition of all inams other than village service inams and inams held by religious and charitable institutions. But the title holder has to be the religious or charitable institution and not the individual Mutawalis. Hence, the Gazette Notification is not in accordance with law.
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 70
28. The next question to be decided is whether the Gazette Notification has been issued in accordance with the provisions of Section 4 of the Waqf Act, 1954 which prescribed the procedure for conduct of survey. Section 5 provides for publication of list of Wakfs. The provisions of Section 4 of the Waqf Act, 1954 have been considered by a learned Single Judge of this Court in the case of Gowra Reddy Vs. Govt. of A.P. (2 supra) and it was held as under:-
"27. It is not in dispute that the petitioners have challenged the validity of the Gazette notification dated 9-2-1989. It is their case that there is a violation of provisions contained under Section 4 of the Act inasmuch as no enquiry was conducted by the Survey Commissioner as required under Section 4 of the Act. In such an event, it is the case of the petitioners that no suit need be filed as the validity of the notification itself is in challenge. The Supreme Court has not ruled out the filling of Writ Petition in all the cases where the notifications were issued. In Board of Muslim Wakfs case (AIR 1992 SC 1083) (supra), as already noted above, the Supreme Court held when an enquiry was conducted and in consequence of such an enquiry, a notification was issued and in such an event, the challenge cannot be made under Article 226 of the Constitution of India except on the question of jurisdiction. But, with regard to the procedure, which out to have been followed, the Supreme Court did not stipulate any yardstick for challenging such a notification. It is no doubt true that when a Competent Authority has decided the issue under the provisions of the Act, it is only to be challenged under the provisions of the Act and resort cannot be taken to Article 226 of the W.P.Nos.16121, 16127, 16129 & 16130 of 2020 71 Constitution of India. But, however, in case when the order passed is wholly without jurisdiction or the authority lacks the competence or there is infraction of statutory provisions, it cannot be said that the Writ Petition is not available to the aggrieved party. In the instant cases, it has to be seen whether the notification issued under Section 5 of the Act was preceded by the statutory compliance as stipulated under Section 4 of the Act.
29. The pre-requisite for publishing the Wakf is an enquiry to be conducted under Section 4 of the Act and such an enquiry report has to be forwarded to the State Government, who in turn has to forward the same to the Wakt Board and the Wakf Board is required to examine the report and thereafter publish the list of Wakfs in the Official Gazette. If these requirements were fulfilled, then the contention of the learned counsel for the Wakf Board and the learned Government Pleader would be sustainable. When the pre-requisite for publishing the Wakf is not fulfilled, then the question would remain Whether that can be challenged under Article 226 of the Constitution of India or in a suit as is sought to be contended by the learned counsel for the respondents.
30. As held by the Supreme Court in Board of Muslim Wakf case (AIR 1979 SC 289), the proceedings under Section 4 of the Act are not administrative proceedings and they are quasi judicial proceedings and there is no record to show that a notice was issued to either Mr. Rangaiah or his son Mr. Lakshmaiah at any point of time and no information is forthcoming as to what type of enquiry was conducted by the Survey Commissioner, which is required to be conducted under Section 4 of the Act. Admittedly, the Survey Commissioner was vested with the powers of a civil Court while conducting the enquiry under Section 4 of the Act and he has the powers to summon even the persons who are sought to be interested in the litigation. That is the reason why W.P.Nos.16121, 16127, 16129 & 16130 of 2020 72 more importance was given to the report of the Survey Commissioner rather than the publication under Section 5 of the Act as it is a consequential action pursuant to the report of the Survey Commissioner and its examination by the Wakf Board. It is not in dispute that the notification was issued in 1989, but the pre-requisite for issuing the notification is the enquiry, which is contemplated under Section 4(3) of the Act. The letter of the Deputy Tahsildar dated 24-7-1967 reads thus:
"With reference to the subject, it is to state that it has been proved beyond doubt that the property mentioned in the schedule at the margin in a wakf property pertaining to Abbas Ali Khan mosque, Meerpet, Jillalaguda. One Laxhmiah R/o Meerpet has illegally occupied over the said wakf property and enjoying the same. The said property is estimated to be more than Rs.6,000/- per acre as per the local rates. The said land may be taken under the custody of the Government and one year assignment may be arranged and legal action must be taken against the illegal occupant, which shall be beneficial."
Except the above letter, there is no other material forthcoming as to what type of enquiry was conducted. Learned Government Pleader would, however, try to stress his argument to the extent that the survey report was prepared by the Survey Commissioner and in column 11(A)(viii) it was mentioned that during the enquiry it came to be known that at the time of Mr. Mir Abbas Ali Khan, the land was given on lease to Mr.Laxhmiah and since then he is in occupation and the lease amount was not being paid to anyone. In the said column, it was also mentioned that in the Munthakab it was mentioned for the purpose of Ood-e-Gul only and there is no other document. The Survey Commissioner has recorded his findings as follows:
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 73 "As per the order dt.23-6-66 in file No.841/CWV/67 S.Nos.38- 131-153 M, 28 Acs. And 32 Gts. for the Mosque of Abbas Ali Khan entered in this form is wakf."
31. If this is construed as the report of the Survey Commissioner, then the purpose of incorporation of Section 4 of the Act is frustrated. It is only a form prescribed for registering a Wakf. But what is required to be done by the Survey Commissioner is not to enter the Wakf as such and he is bound to enquire whether the property is a Wakf property or not. He is also empowered to conduct the enquiry as was observed by the Supreme Court in the decisions referred to above. Mere filling of columns would not amount to report of the Survey Commissioner so as to bind the petitioners. Moreover, it is not in dispute that no notice was ever given to the occupants, who were recorded as such in the revenue register. Admittedly, the report was of 1967 by which time the petitioners were not the purchasers. They came into picture at a later point of time. But, even then the enquiry ought to project as to the notice having been given to the persons. Even according to the reports submitted by the Deputy Tahsildar and also the remarks made by the Survey Commissioner one Lakshmaiah was in actual cultivation, but according to the Deputy Commissioner Laxmaiah was in illegal occupation. Be that as it may, a notice was necessary to be given to the person who is in occupation. But, there is no such record forthcoming as to what type of notice was issued to the parties and what type of enquiry was conducted. The report of the Deputy Tahsildar cannot be construed as an enquiry report or the pro forma for the survey of Wakf properties can be treated as a report of the Survey Commissioner. The report as such has to conform to the requirements of Section 4 of the Act as has been held by the Supreme Court in the catena of decisions referred to above. It is also noticed from the counter that the subject-matter of the property was endowed by the W.P.Nos.16121, 16127, 16129 & 16130 of 2020 74 owner of the land one Abbas Ali Khan into the Wakf Board in the year 1968 and the same was included in the list of wakf properties and the same was published in the Gazette dated 9-2-1989 along with other properties endowed by the same person. If this is to be accepted, it has to be held that the Wakf was registered for the first time in 1968 and there could not have been any report of the Wakf Commissioner in 1967. Further the requirements under Section 25 of the Wakf Act 1954 have to be complied with. There is not even an iota of proof of dedication by Abbas Ali Khan nor is there any Wakf deed. It is very much doubtful whether Abbas Ali Khan was alive in 1968 as can be seen from the Judgment of II Additional City Civil Court in O.S. No. 368/69, dated 31- 3-1982 filed by one Abdul Qavi against Laxmaiah and others. When such statutory requirements are not followed, the further question that falls for consideration is whether still the petitioners are required to approach the appropriate Tribunal or they can agitate under Article 226 of the Constitution of India.
32. It is true that under Section 83 of the Act any dispute arising out of Wakf properties can be agitated only before the Tribunal constituted under the Act. But, in the instant cases, the very principal requirement of notice and conducting enquiry as envisaged under the Act are lacking. Therefore, the question of driving the petitioners to the Tribunal would not arise. Admittedly, the petitioners have made out their occupation rights from Mr. Rangaiah's possession and thereafter Mr. Lakshmaiah and they have purchased the land under registered sale deeds and that too after obtaining appropriate permission from the Competent Authority and it is also one of the contentions of the petitioners that they have acquired title by adverse possession. But, I am not inclined to adjudicate the same inasmuch as I am only concerned with the validity of the notification published in the Gazette on 9-2-1989. The decision referred to by the learned counsel for Wakf Board that the W.P.Nos.16121, 16127, 16129 & 16130 of 2020 75 petitioners have to approach the Tribunal or the Civil Court, as the case may be, even after the expiry of one year period after the publication of Gazette notification is not applicable to the present cases, as that situation would not arise inasmuch as when the notice itself is lacking and no purpose will be served by approaching the Tribunal, or Civil Court. It is also to be noted that the report of the Survey Commissioner sent by the Government to the Wakf Board has no automatic acceptance. It is required to examine such report before publishing the list. This statutory obligation is also totally lacking in this case. When the violation of statutory provisions is made out, it is always open to the parties to approach this Court under Article 226 of the Constitution of India. Admittedly, as can be seen from various documents filed by both the parties in these matters, nothing has been established-to sustain the contention that the enquiry was conducted as required under Section 4(3) of the Act. In such a situation, it cannot be said that the impugned Notification is binding on the petitioners and accordingly, the petitioners are entitled to challenge the same as it is illegal and not enforceable as far as the petitioners are concerned. Accordingly, I have to reject the contention raised on behalf of the Wakf Board and also the Government in this regard."
29. This decision has been upheld by the Divison Bench of this Court, i.e., A.P. High Court (as it then was) in W.A. No.745 of 2002 and batch dated 21.03.2021 and the said decision has also been upheld by the Hon'ble Supreme Court in SLP in CC 12010-12015 of 2012 dated 27.02.2012. The copies of the said orders are also filed along with the writ papers.
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 76
30. The Hon'ble Supreme Court in its latest decisions in Salem Muslim Burial Ground Protection Committee Vs. State of Tamil Nadu and others (7 supra) has considered Section 4 and Section 5 of the Waqf Act, 1954 and has held under:-
"30. Another limb of the argument is that the suit land has been declared to be a wakf property vide notification dated 29.04.1959. In this regard, it has to be noted that such a declaration has to be in consonance with the provisions of the Wakf Act, 1954 or the Waqf Act, 1955. Both the aforesaid Acts lay down the procedure for issuing notification declaring any property as a wakf.
31. The Wakf Act, 1954, which actually is relevant for our purpose, provides that, first, a preliminary survey of wakfs has to be conducted and the Survey Commission shall, after such inquiry as may be deemed necessary, submit its report to the State government about certain factors enumerated therein whereupon the State Government by a notification in the Official Gazette direct for a second survey to be conducted. Once the above procedure of survey is completed and the disputes arising thereto have been settled, on receipt of the report, the State Government shall forward it to the Wakf Board. The Wakf Board on examining the same shall publish the list of wakfs in existence with full particulars in the Official Gazette as contemplated under Section 5 of the Act. Similar provisions exist under the Waqf Act, 1995.
32. A plain reading of the provisions of the above two Acts would reveal that the notification under Section 5 of both the Acts declaring the list of the wakfs shall only be published after completion of the process as laid down under Section 4 of the above Acts, which provides for two W.P.Nos.16121, 16127, 16129 & 16130 of 2020 77 surveys, settlement of disputes arising thereto and the submission of the report to the State Government and to the Board. Therefore, conducting of the surveys hand, there is no material or evidence on record that before issuing notification before declaring a property a wakf property is a sine qua non. In the case at under Section 5 of the Wakf Act, 1954, any procedure or the survey was conducted as contemplated by Section 4 of the Act. In the absence of such a material, the mere issuance of the notification under Section 5 of the Act would not constitute a valid wakf in respect of the suit land. Therefore, the Notification dated 29-4-1959 is not a conclusive proof of the fact that the suit land is a wakf property. It is for this reason probably that the appellant Committee had never pressed the said notification into service up till 1999.
33. In T.N. Wakf Board v. Hathija Ammals, it was observed that the Wakf Board should follow the procedure as required under Sections 4, 5 and 6 or Section 27 of the Wakf Act before notifying the wakfs under Section 5 of the Act.
34. In Madanuri Sri Rama Chandra Murthy v. Syed Jalal, it was observed as under: (SCC p. 185, para 16)
16. Thus, it is amply clear that the conducting of survey by the Survey Commissioner and preparing a report and forwarding the same to the State or the Wakf Board precedes the final act of notifying such list in the Official Gazette by the State under the 1995 Act (it was by the Board under the 1954 Act). As mentioned supra, the list would be prepared by the Survey Commissioner after making due enquiry and after valid survey as well as after due application of mind. The enquiry contemplated under sub- section (3) of Section 4 is not merely an informal enquiry but a formal enquiry to find out at the grass root level, as to whether the property is a wakf property or not. Thereafter the Wakf Board W.P.Nos.16121, 16127, 16129 & 16130 of 2020 78 will once again examine the list sent to it with due application of its mind and only thereafter the same will be sent to the Government for notifying the same in the Gazette.
35. It may be noted that Wakf Board is a statutory authority under the Wakf Act. Therefore, the Official Gazette is bound to carry any notification at the instance of the Wakf Board but nonetheless, the State Government is not bound by such a publication of the notification published in the Official Gazette merely for the reason that it has been so published. In State of A.P. v. A.P. Wakf Board, this Court consisting of one of us (V. Ramasubramanian, J. as a Member) held that the publication of a notification in the Official Gazette has a presumption of knowledge to the general public just like an advertisement published in the newspaper but such a notification published at the instance of the Wakf Board in the State Gazette is not binding upon the State Government. It means that the notification, if any, published in the Official Gazette at the behest of the Wakf Act giving the lists of the wakfs is not a conclusive proof that a particular property is a wakf property especially, when no procedure as prescribed under Section 4 of the Wakf Act has been followed in issuing the same."
31. On the other hand, the respondents contend that notice was served through beat of tom-tom. However, as rightly pointed out by the learned counsel for the petitioners, service by beat of tom-tom is not a recognized mode of service under any of the relevant statutes. Even otherwise, the respondents have not placed any material on record to substantiate that such a mode of service was in fact adopted. Learned counsel for the respondents has placed reliance upon the judgment of the W.P.Nos.16121, 16127, 16129 & 16130 of 2020 79 Hon'ble Apex Court in Rai Vimal Krishna Vs. State of Bihar (15 supra) to contend that where no specific mode of service is prescribed under the Waqf Act, the plea of lack of knowledge of notice cannot be readily accepted and that strict sanctity need not be attached to the mode of service. In support of the said contention, reliance is placed on the following paragraphs.
"26. The third submission of the appellants relates to the mode of publication of the assessment lists. That the mode of publication is a procedural provision is self-evident. But is it a mandatory provision? The High Court's finding as to the nature of the provision for publication under sub-section (1) of Section 149 is somewhat contradictory. While holding that the manner of publication was mandatory and had to be complied with in terms thereof, in a subsequent portion of the judgment, it was held that it was a mere irregularity which could be waived. As we read sub-section (1) of Section 149, the Chief Executive Officer is bound to give public notice of the assessment list. The word "shall" makes that clear. However, the word "shall" does not qualify the next phrase which is separated from the words "public notice" by a comma. The phrase separated is "by beat of drum and by placards posted in conspicuous places throughout Patna...". Generally speaking, the object of giving a notice is to draw the attention of the persons sought to be affected to the matter notified. The purpose of specifying a particular mode of giving notice is to raise a legal presumption against such person, of knowledge of the subject of the notice. In other words, once the mode specified for giving notice is complied with, the onus is on the persons notified to prove that they were not aware of the subject-matter of the notice. There W.P.Nos.16121, 16127, 16129 & 16130 of 2020 80 is otherwise no special sanctity given to the mode of service of notice. The appellants have contended that even though owners were served with individual notices under Section 149(2), unless publication was made in the manner provided in Section 149(1) the occupants who were liable to pay water tax and latrine tax would be seriously affected and would not have an opportunity of challenging the imposition of the tax on them. Incidentally, in the objections filed by the appellants their contention is that the holdings owned by them were not liable to payment of latrine tax or water tax because neither of the services were available. However, the matter has to be decided as a principle and not with reference to the appellants' case.
27. Nobody disputes that publication and the giving of notice to persons 9 likely to be affected by the assessment list is a must. The appellants have admitted publication of the assessment lists in three newspapers. It is not their case that such publication did not serve the purpose of notifying those who might be affected by the assessment lists, of their existence. Indeed it appears to us that the requirement to notify people by beat of drum is an anachronism which appears to be inappropriate in the present day and age in a large city like Patna. The High Court's apprehension that "holding this provision as directory is likely to cause confusion and mischief in future and it is not for this Court to substitute the wisdom of the legislature with its own by holding that notice by newspaper will be sufficient in place of notice of the spot by beat of drum and placards" is unfounded both in law and in fact. It is an elementary principle of interpretation that words in statutory provisions take their colour from their context and object, keeping pace with the time when the word is being construed. When or where no other means of effective publication is available, no doubt, announcing the assessment list by beat of drum and by b displaying placards would have to be complied with. Where equally efficacious, if not better, modes of W.P.Nos.16121, 16127, 16129 & 16130 of 2020 81 publication are available, it would be ridiculous to insist on an obsolete form of publication as if it were a ritual. Had the High Court found that publication by newspapers was not effective enough to notify the public, the assessment list could not be given effect to unless publication was properly made. There is no such finding. On the other hand, publication through newspapers is now an accepted form of giving general notice. Therefore, we have no hesitation in holding that the portion of Section 149(1) which deals with the manner of publication, as opposed to the requirement for publication per se, is directory. Since there has been sufficient compliance in effecting the intention of the legislature to give notice to the public at large in the city of Patna, we cannot hold that the d assessment lists prepared on the basis of the 1993 Rules are required to be set aside."
32. This Court finds that the principle laid down in this decision is that it is sufficient if one of the modes of service of notice is adopted and it is not necessary that the alternative mode also is to be adopted. In the cited case, the notices were published in the newspapers and the other mode of notice by beat of drum was not followed and it was in these circumstances that the Hon'ble Supreme Court has held that once one of the modes specified for giving notice is complied with, the onus is on the persons notified to prove that they were not aware of the subject matter of the notice. In the case before this Court, there is no record of service of notice by any mode, leave alone by beat of drum/tom tom.
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 82 Therefore, the presumption that the petitioners or their predecessors were aware of the survey cannot be drawn.
33. This Court has then observed and held that before conducting the survey under Section 4(3) of the Waqf Act, a notice has to be given to all the affected parties. It is also observed that the respondents claimed to have issued notice by beat of drum/tom tom and therefore, admittedly no notice in writing was given. This Court has already observed that the mode of service of notice through tom tom is not a prescribed or recognized mode of service of notice and there is also nothing on record to show that the service of notice was done through beat of drum/tom tom.
34. Therefore, the contention of the respondents that the notice was issued to all the concerned and that the petitioners chose not to contest the case or raised any objections cannot be accepted. In such facts and circumstances, the decision of this Court in the case of Gowra Reddy Vs. Government of Andhra Pradesh and others (2 supra) which has been considered by the Hon'ble Supreme Court as observed above, would be applicable and the enquiry under Section 4(3) of the Waqf Act becomes void ab initio and therefore, the Gazette Notification No.7-A, W.P.Nos.16121, 16127, 16129 & 16130 of 2020 83 dated 16.02.1989 issued by the Telangana Waqf Board on the basis of an enquiry under Section 4(3) in the year 1966 is not sustainable.
35. Another reason for holding so is the delay of 23 years in issuing the notification after the alleged survey in the year 1966-67. Even if it was to be accepted that there was service of notice through beat of drum in the year 1966-67, the fact that the Waqf Board kept quiet for 23 years and has issued notification in the year 1989, goes to prove that the survey report was not acted upon. There was a possibility of lot of changes in the subject land during this period and since the executive power was not exercised by the State Waqf Board within a reasonable period, the survey report of 1966 cannot be relied upon for issuance of notification in the year 1989. A Division Bench of this Court in the case of Munawar Sultana and others Vs. Gosula Ramulu and others (4 supra) has referred to the judgment of the Hon'ble Apex Court in the case of State of A.P. Vs. A.P. Wakf Board (23 supra) and observed that the Hon'ble Supreme Court has disapproved the action of issuing an errata notification after a lapse of 17 years from the date of first notification.
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 84
36. If a person is in adverse possession for more than 12 years, his possession is protected and he cannot be evicted therefrom without following due process of law. We are talking about 23 years after the survey and the survey report also mentions that the kouldars are in possession of the property. The factum of the Waqf Board not taking any steps to evict the kouldars/encroachers also demonstrates that the Waqf Board was also not serious in taking possession of the property even after it was established during the course of the alleged survey, that the petitioners/kouldars are in possession of the property.
37. Therefore, the Waqf Board has also acquiesced to the possession of the petitioners and they could not have issued the impugned notification without conducting a fresh survey. Further, the Gazette Notification was issued by the Waqf Board without verification of the enquiry report, i.e., as to whether the enquiry was conducted by following the prescribed procedure. As rightly pointed out by learned counsel for the petitioners, it is the proforma of the survey report which has been filed and not the report itself. Since the prescribed procedure has not been followed by the respondents, the impugned Gazette Notification is liable to be set aside.
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 85
38. Even on merits, this Court finds that there are several discrepancies in the proforma of the survey report and the Muntgakhab relied upon by the respondents. The total extent mentioned in the Muntakhab is Acs.886.02 gts., whereas in the counter affidavit, the total extent of Waqf land is mentioned as Acs.1299.09 gts., whereas the impugned Notification mentions it as Acs.1293.27 gts. There are no survey numbers mentioned in the Muntakhab, whereas the survey numbers are mentioned only in the impugned Notification.
39. The learned counsel for the petitioners has pointed out that at the time of the survey, there were three revenue villages of Aloor, whereas the notification Muntakhab refers to only Aloor Village and the Survey numbers which have been mentioned in the proforma do not find place in the impugned Notification. Therefore, it appears that when comparing the Muntakhab proforma and the impugned Notification, there are many contradictions.
40. Further, the original Muntakhab has not been produced by the parties and it is only the photocopy which is produced. Further, as pointed out by the learned counsel for the petitioners, the records show W.P.Nos.16121, 16127, 16129 & 16130 of 2020 86 that the major extent of land in the villages Aloor-I and Aloor-II has been recorded as sarkari and not as Inam lands and therefore, this fact falsifies the claim that the entire land covered under notification was Inam granted through Muntakhab.
41. Though these specific allegations have been raised by the petitioners in their writ affidavits and also the written arguments, the respondents have not rebutted the same with any evidence to the contrary nor have they produced any documentary evidence. There is reference to the correspondence/letters between the State Waqf Board and the Deputy Collector, Ranga Reddy District, wherein there was request to incorporate Inams of the Waqf institution in the revenue records.
42. According to the learned Senior Counsel for the respondent-Waqf Board, the claim of the Waqf Board with regard to Waqf subject land being Waqf property is not a concocted one and that it is true and correct. However, this Court finds that the said correspondence furnishes only incomplete information and therefore, it cannot be relied upon to come to any conclusion about the veracity of the claim of the Waqf Board.
W.P.Nos.16121, 16127, 16129 & 16130 of 2020 87
43. Even otherwise, this correspondence would be only on the basis of Muntakhab and the impugned Notification of 1989 and since the Notification has been held to be issued without proper survey under Section 4(3) of the Waqf Act, the subsequent correspondence even if it is with regard to the subject property would not establish the right of Waqf Board over the property.
44. As held by the Hon'ble Supreme Court in the case of Salem Muslim Burial Ground Protection Committee Vs. State of Tamil Nadu (7 supra), mere issuance of notification under Section 5 of the Act would not constitute a valid ground in respect of the subject land and this view has also been expressed by the Division Bench of this Court.
45. Further, learned Standing Counsel for the Waqf Board has placed reliance upon the decision of Hon'ble Supreme Court in the case of Zile Singh Vs. State of Haryana and others 24 for the proposition that where the legislation is introduced to overcome a judicial decision, the power cannot be used to subvert the decision without removing the statutory basis of the decision and therefore, the amendment made to law cannot 24 (2004) 8 SCC 1 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 88 be applicable retrospectively unless it is stated so. However, this decision is not applicable to the facts of the case before this Court.
46. He also placed reliance upon the decision of the Hon'ble Supreme Court in the case of Faqruddin (dead) through L.Rs. Vs. Tajuddin (dead) through L.Rs. 25 in support of his contention that revenue authorities cannot decide a question of title and that inheritance or succession to a property is governed by statutory law and that the offices of Sajjadanashin or Mutawalli is not an ordinary office and that a person must possess the requisite qualifications to hold the said office and further, that there is no distinction between the office and the property of endowment.
47. He also referred to the decision of a Division Bench of this Court in the case of R. Doraswamy Reddy Vs. The Board of Wakf A.P. Hyderabad rep. by its Secretary 26 for the meaning of the word 'beneficiary' under Section 3(a) of the Wakf Act, 1954 to submit that 'benefit' does not include any benefit which a mutawalli is entitled to claim solely by reason of his being such mutawalli. 25
(2008) 8 SCC 12 26 S.A.No.445 of 1977 dt.16.08.1978 of High Court of Judicature, Andhra Pradesh at Hyderabad W.P.Nos.16121, 16127, 16129 & 16130 of 2020 89
48. In support of his contention that entries in revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries, he placed reliance upon the decision of the Hon'ble Supreme Court of India in the case of Suraj Bhan and others Vs. Financial Commissioner and others 27.
49. He also referred to and placed reliance upon the decision of a learned Single Judge of this Court in the case of K.G.Krishna Murthy (died) by L.Rs. Vs. Joint Collector, Ranga Reddy District and others28 to submit that after 01.11.1973, ORC can be given only in the name of an institution when it is a service Inam and not in the name of an individual.
50. In support of his contention that Munthaquab is the document which would decide the nature of the property, he placed reliance upon the decision of a learned Single Judge of this Court in the case of Syed Ameenuddin Hussain Vs. Joint Collector, Medak District at Sanga Reddy and others29.
27 (2007) 6 SCC 186 28 2008 (1) ALD 836 29 2003 (4) ALD 878 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 90
51. This Court has already discussed the principles referred to in the above judgments by holding that under Inams Abolition Act, it is only the religious institution whose name can be recorded and who can be issued the ownership right certificate (ORC) and not the individual.
52. Learned Senior Counsel appearing for Waqf Board had relied upon the judgment of the Hon'ble Supreme Court in the case of L. Chandra Kumar Vs. Union of India and others (10 supra) to submit that after the constitution of the Waqf Tribunal, the High Court cannot decide the issues relegated to the Tribunal and for the very same purpose, he placed reliance on the decision of this Court in the case of Dr. T.S.A. Guptha Vs. Joint Collector-II, Hyderabad and others 30. Further, he placed reliance on the decision of the Hon'ble Supreme Court in the case of Rashid Wali Beg Vs. Farid Pindari and others (11 supra) to submit that Section 83 of the Wakf Act, 1995 covers the entire gamut of possible decision to any waqf or waqf property and therefore, the petitioners should be directed to approach the Waqf Tribunal for adjudication of their disputes. The other decisions relied 30 2007 SCC OnLine AP 753 : (2008) 2 ALD 184 : (2008) 4 ALT 189 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 91 upon by the learned Senior Counsel appearing for the Waqf Board are as follows:
(i) Mohd. Jeelani Vs. Syed Jamrouddin and others 31
(ii) The Public Information Officer Vs. A.P. Information Commissioner and another32
(iii) Yousuf Begum Vs. Wakf Board, Hyderabad and another (18 supra)
(iv) V. Aruna Vs. State of Telangana rep. by its Prl.
Secretary, Revenue Department and others (16 supra)
(v) S. Manikya Reddy Vs. The A.P. State Wakf Board, rep.
by its Chief Executive Officer, Hyderabad and another33
(vi) Rai Vimal Krishna and others vs. State of Bihar and others (15 supra).
This Court finds that there is no quarrel with regard to the principles laid down by the Hon'ble Supreme Court in the cases cited supra and the 31 2000 (3) ALT 766 32 AIR 2009 Andhra Pradesh 73 33 2014 SCC OnLine AP 336 : (2014) 5 ALD 35: (2014) 6 ALT 525 W.P.Nos.16121, 16127, 16129 & 16130 of 2020 92 principles laid down therein are applicable to the facts of the case before this Court and some principles have already been considered by this Court in the above paragraphs.
53. In view of the same, the impugned Gazette Notification No.7-A dated 16.02.1989 is held to be bad in law and is accordingly set aside; and the impugned Memo dated 04.12.2019 is also set aside with a direction to respondent No.4, i.e., the Revenue Divisional Officer, Chevella Division, Ranga Reddy District, to reconsider the applications of the writ petitioners for Occupancy Rights Certificate (ORC) afresh without reference to the Gazette Notification No.7-A dated 16.02.1989.
54. The Writ Petitions are accordingly allowed. No order as to costs. This Court, while passing order dt.15.12.2025 in the implead applications in all the Writ Petitions, has allowed them by observing that any decision on merits of rights of each party will be subject to appropriate proceedings at the time of hearing of the Writ Petitions themselves. Having gone through the contentions of the petitioners as well as the respondents, it is noticed that the petitioners in the implead applications are claiming to be the legal heirs of inamdars and this Court has observed that the impugned Gazette Notification is not valid as the W.P.Nos.16121, 16127, 16129 & 16130 of 2020 93 prescribed procedure for conduct of enquiry under Section 4(3) of the Waqf Act has not been followed. The nature of the property and the rights or otherwise of the inamdars are not the issues before this Court and therefore, the rights of the legal heirs of such inamdars cannot be considered and adjudicated in these Writ Petitions. The impleaded parties are therefore advised to approach appropriate authority for redressal of their grievances, if any.
55. Pending miscellaneous petitions, if any, in these Writ Petitions shall stand closed.
___________________________ JUSTICE T. MADHAVI DEVI Date: 17.04.2026 SPD/Adt/Svv