Telangana High Court
P.Srinivas vs The State Of Telangana, And 7 Others on 10 March, 2020
Author: P.Naveen Rao
Bench: P.Naveen Rao
HONOURABLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION NOs.7570, 8130, 9151, 11539, 22949, 23185,
23229, 23301, 23320, 23750, 23760, 23777, 24235, 24236,
24396, 24416, 24448, 24531, 24587, 24684, 24910, 25094,
25165, 25245, 25621, 25683 & 25691 OF 2019
Date: 10.03.2020
W.P.No.7570 of 2019 :
Between:
V.Aruna, W/o. V Srinivas Reddy, Aged 45 years,
Occ:House Wife, Resident of Flat No.401,
Sneha Sumathi Apartments, Ravindra Nagar Colony,
Street No.8, Habsiguda, Ranga Reddy District.
.....Petitioner
And
The State of Telangana, rep., by its Prl. Secretary,
Revenue Department, State Secretariat Buildings,
Hyderabad & others.
.....Respondents
The Court made the following:
PNR,J
W.P.No.7570 of 2019 & batch
2
HONOURABLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION NOs.7570, 8130, 9151, 11539, 22949, 23185,
23229, 23301, 23320, 23750, 23760, 23777, 24235, 24236,
24396, 24416, 24448, 24531, 24587, 24684, 24910, 25094,
25165, 25245, 25621, 25683 & 25691 OF 2019.
COMMON ORDER:
In all these writ petitions, petitioners are aggrieved by inclusion of properties claimed to be owned by them in Sy.Nos.45 to 50, 91, 93, 103 EE and 116 of Boduppal Village, in the Gazette Notification dated 09.02.1989, declaring the same as wakf properties and challenge the said Gazette Notification and seek declarations and directions.
2. Based on the averments in the writ petitions broadly, these writ petitions can be put into two groups. However, as the principal challenge is to gazette notification dated 09.02.1989 and grounds urged are pari materia same, they are considered together and common order is passed.
Group-I:
3. Writ Petition Nos.7570, 8130, 9151, 11539, 22949, 23185, 23229, 23301, 23320, 23750, 23760, 24235, 24236, 24448, 24684, 24910, 25094, 25165, 25245 & 25691 OF 2019.
4. For convenience, the facts of W.P.No.22949 of 2019 are taken. According to the averments in the affidavit filed in support of W.P.No.22949 of 2019, petitioners claim that General Power of Attorney was executed in their favour by Smt Bommaku Salamma, Sri Bommaku Srisailam and Sri Bommaku Pandu, residents of Boduppal Village, in respect of plot bearing No.123 Northern Part in Sy.Nos.46 Part, 49 Part and 50 Part admeasuring 150 Square PNR,J W.P.No.7570 of 2019 & batch 3 yards in R.N.S.Colony, Boduppal Village, Medchal-Malkajgiri District. According to petitioners, when they sought to present the deed of conveyance, the Sub-Registrar, Uppal-7th respondent refused to accept the document presented for registration, by referring to letter dated 25.02.2019, written by the Commissioner & Inspector General of Stamps and Registration, informing prohibition on registration of deeds of conveyance on the properties mentioned in the said letter. On further request, petitioners were supplied copy of the Gazette publication dated 09.02.1989, wherein several extents of land of Boduppal village, in all Ac.294.20 guntas, were shown as wakf properties.
5. In the affidavit filed in support of writ petition, petitioners traced the history of flow of title. According to petitioners, the predecessors were the pattadars and possessors and in enjoyment over the land mentioned above. The subject land was regularized under Section 8 r/w. Section 10 of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955, vide proceedings, dated 20.07.1996. It is a private patta land and no fetters on alienation can be imposed.
Group-II:
6. In W.P.Nos.23777, 24396, 24416, 24531, 24587, 25621, & 25683 of 2019, petitioners claim to have purchased plots of land in a layout. In all these writ petitions, petitioners trace the ownership to Sri J.Mallaiah on land to an extent of Acs.18.00 guntas in Sy.Nos.91 and 93 of Boduppal village. Petitioners also speak of regularization.
PNR,J W.P.No.7570 of 2019 & batch 4
7. For convenience, facts in W.P.No.24587 of 2019 are noted. Petitioners trace title to property to Sri J.Mallaiah. According to petitioners, name of J.Mallaiah, vendor of their mother's vendors Sri P.Krishna Reddy and others was shown in revenue records in the pahanies of the years 1982-83 and 1984-85 to an extent of Acs.18.00 guntas in Sy.Nos.91 and 93 of Boduppal village. Mother of petitioners purchased 200 square yards of land vide document dated 30.08.1993 and she executed gift deed for 100 square yards each in favour of petitioners on 26.05.2008. These two pieces of land forms part of layout formed by vendors and there were number of sale transactions registered in the land forming part of the layout. Petitioners claim to have obtained building permission on 19.09.2019. When they went before Sub-Registrar to register agreement of sale-cum-General Power of Attorney executed in favour of V.Hari Krishna Reddy, the same was refused referring to gazette dated 09.02.1989. It is to be noted that petitioners have included copies of pahanies for the years 1982-83 and 1984-85, whereas gazette was published on 19.02.1989.
8. Elaborate submissions are made by learned counsel for the petitioners, learned Standing Counsel for the State Wakf Board and learned Government Pleader.
9.1. According to learned counsel for petitioners, procedure required for notifying the property as Wakf property was not followed; no enquiry was held by the Survey Commissioner as required by the Wakf Act, 1995 (for short 'the Act'); no Gazette Notification was issued appointing Survey Commissioner.
PNR,J W.P.No.7570 of 2019 & batch 5 9.2. Learned counsel would submit that the Government has no authority or jurisdiction to declare the property as wakf property without following the due procedure; that no notice was issued to any person interested in the property before issuing the Gazette Notification.
9.3. It was contended that even though such Gazette Notification was claimed to have been issued in the year 1989, layout permissions were granted, building permissions were granted, houses are constructed and thousands of sale transactions have taken place on the properties shown in the said Gazette Notification, whereas when it came to the petitioners documents, objection was raised.
9.4. Reliance is placed on the decision of this Court in B.Gowra Reddy Vs Government of A.P.1, to contend that this same Gazette Notification was declared as not valid. It is further asserted that in view of the decision of Hon'ble Supreme Court in Sri Nivasam Mutual Aided, House Building Society Ltd and others Vs State of Andhra Pradesh and others2, the Registering Authority cannot refuse to register the document pending adjudication of validity of Section 22-A of the Registration Act, 1908.
9.5. Learned counsel placed reliance on following decisions also:
A.P. State Wakf Board rep by its Chief Executive Officer Vs. B Gowra Reddy (died per LRS) and others3, Gosula Ramulu Vs A.P. Wakf Board4, State of Andhra Pradesh through 1 2002 AIR (A.P) 313 2 2018 (3) ALT 42 (SC) 3 W.A. 745 of 2002 and batch dt 21.3.2011 4 (2017) 5 ALD 298 PNR,J W.P.No.7570 of 2019 & batch 6 Principal Secretary and others Vs Pratap Karan and others5, Syed Rawoof Vs State of Andhra Pradesh6, Syed Ameen Vs A.P. State Wakf Board, Hyderabad7, Board of Muslim Wakfs, Rajasthan Vs Radha Kishan and others8.
10.1. According to learned Standing Counsel for the respondent- Wakf Board, the writ petitions instituted challenging the Gazette notification dated 9.2.1989 after more than 30 years are not maintainable on the sole ground of inordinate delay and latches. 10.2. It is asserted by learned Standing Counsel, that the subject property is a wakf property and alleged Occupancy Rights Certificate stated to have been issued in the year 1996 has no legal sanctity and petitioners cannot trace the title based on orders passed under the Act,1955. Further, question of acquiring title by adverse possession on Wakf land does not arise unless and until a declaration is given by the competent Court that the said property is not a wakf property. Therefore, registration of deeds of conveyance on the wakf properties is not permissible, as long as it is a Wakf land.
10.3. He would submit that once a Wakf it is always a Wakf and even if the impugned notification is set aside, it will not alter the status of Wakf.
10.4. Learned standing counsel placed reliance on following decisions:
5
(2016) 2 SCC 82 6 2013 (5) ALD 495 7 2014 (6) ALD 411 8 (1979) 2 SCC 458 PNR,J W.P.No.7570 of 2019 & batch 7 S.P.Chengalvaraya Naidu (dead) by LRs. V Jagannath (dead) by LRs and others9, Sayyed Ali and others Vs A.P.Wakf Board, Hyderabad and others10, Syed Ameenuddin Hussain v.
Joint Collector, Medak District at Sanga Reddy and others11, Gammon India Limited v. Special chief Secretary and others12, A.V.Papayya Sastry and others v. Govt. of A.P., and others13, K.G.Krishna Murthy (died) by LRs. V Joint Collector, Ranga Reddy district and others14, Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and others15, District Collector, Anantapur district v. M.Sadasiva Reddy16, Siri Nivasam Mutual Aided Housing Building Society Limited and others v. State of Andhra Pradesh and others17, Lal Shah Baba Dargah Trust v. Magnum Developers and Others18, State of Tamil Nadu and others v. K.Shyam Sunder and others19.
11. Learned Government Pleader produced copy of the letter dated 12.07.2019, written by the Chief Executive Officer of Telangana State Wakf Board addressed to the Deputy Inspector General Registration and Stamps, Medchal-Malkajgiri.
12. I have carefully considered respective submissions and decisions cited at the bar.
9 (994) 1 SCC 1 10 (1998) 2 SCC 642 11 2003 (4) ALD 878 12 (2006) 3 SCC 354 13 (2007) 4 SCC 221 14 2008(1) ALD 836 15 (2009) 16 SCC 517 16 2017(2) ALD 24 (DB) 17 2018(3) ALT 42 (SC) 18 AIR 2016 SC 381 19 (2011) 8 SCC 737 PNR,J W.P.No.7570 of 2019 & batch 8
13. The following issues fall for consideration:
(i) Whether writ petitions are maintainable when petitioners have an effective remedy under Section 83 of the Wakf Act to redress the grievance/ to resolve the dispute?
(ii) Assuming that this Court can entertain writ petition notwithstanding availability of alternative remedy, whether writ petitions are liable to be dismissed on the ground of delay and latches?
(iii) Whether Registering Authority committed illegality in not receiving/registering deeds of conveyance presented by petitioners on the subject properties?
14. Before considering these issues, it is appropriate to note that persons who claim to be pattedars of the subject land are not parties to this writ petition. The Gazette notification was issued long before purchase of the plots of land by the petitioners.
15. At this stage, it is necessary to examine statutory scheme. Section 4 deals with appointment of Survey Commissioner/ Additional/Assistant Survey Commissioners, procedure to conduct survey and powers vested in them. Section 5 talks about publication of list of auqaf. As per section 5(1) of both Acts, it is required by the State Government to forward copy of survey report to the Board. As per section 5(2) of old Act, Board was competent to publish list of wakfs in Official Gazette whereas section 5(2) of the new Act requires Board to examine and forward the report to Government and for publication in the Official Gazette. Section 5 of the new Act mandates Revenue authorities to include list of auqaf by updating land records and while deciding mutation of land records to note whether the property in issue is notified as PNR,J W.P.No.7570 of 2019 & batch 9 wakf property; it also requires State Government to maintain record of lists published under Section 5(2).
16. Section 6 deals with disputes regarding auqaf. It creates legal remedy for a person contesting status of property claimed as waqf property before the tribunal (constituted under section 83). It is significant to notice the difference brought out in the new Act compared to the old Act in the section. Section 6(1) of the old Act refers to property specified as wakf property in list of auqafs published, vide notification in the official gazette, under Section 5, whereas Section 6(1) of new Act does not refer to publication in Official Gazette as a requirement to avail the remedy provided in the Act.
17. Two aspects are noticed from assessment of definition of waqf and provisions in section 4 to 6 of both Acts. Firstly, Sections 4 to 6 are part of Chapter II which deals with survey of auqaf. The provisions proceed on the premise that movable and immovable property is already dedicated for any pious purpose recognized by Muslim law and requires conducting of survey of such property. Thus, by the process of conducting survey, no new property is recognized as waqf property. Both enactments are silent on purpose of conducting survey but by cumulative reading of Sections 4 and 5, it appears the purpose of survey and preparing a list is to identify the wakf properties and to put on notice the public at large that properties shown in the list are waqf properties.
18. The Gazetting is not the starting point to treat a property as waqf property. Looking at definition of waqf in the Act, the object of PNR,J W.P.No.7570 of 2019 & batch 10 conducting survey, it is safe to assume that such survey can be for actual identification of extent of land claimed as waqf land.
19. In Board of Muslim Wakfs vs. Radha Kishan20, on review of provisions in the old Act, Supreme Court held as under:
"22-A. It is needless to stress that the whole purpose of the survey of wakf by the Commissioner of Wakfs under sub-section (1) of Section 4 is to inform the Board of Wakfs, as to the existence of the existing wakfs in a State, in order that all such wakfs should be brought under the supervision and control of the Board of Wakfs.
26. ..... If the Commissioner of Wakfs has the power to make a survey, it is but implicit that in the exercise of such power he should enquire whether a wakf exists. The making of such an enquiry is a necessary concomitant of the power to survey.
28. ..... They clearly envisage that the enquiry by the Commissioner is not confined to the question as to whether a particular wakf is Shia wakf or Sunni wakf. It may also embrace within itself a dispute as to whether a wakf exists. This is a construction which sub-section (1) of Section 4 must, in its context and setting, bear. Any other construction would, indeed, make the Act unworkable.
39. It follows that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to sub-section (1) of Section 6 is not applicable to him. In other words, the list published by the Board of Wakfs under sub-section (2) of Section 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises.
42. We must accordingly hold that the Commissioner of Wakfs acted within jurisdiction in holding the disputed property to be wakf property. It must, therefore, follow that the Board of Muslim Wakfs, Rajasthan was justified in including the property in the 20 (1979) 2 SCC 468 PNR,J W.P.No.7570 of 2019 & batch 11 list of wakfs published under sub-section (2) of Section 5 of the Act. We must also hold, on a construction of sub-section (1) of Section 6 that the list of wakfs so published by the Board was not final and conclusive under sub-section (4) of Section 6 against the Respondents 1 and 2 due to their failure to bring a suit within one year as contemplated by sub-section (1) of Section 6."
20. In the above analysis of statutory provisions and view expressed by the Supreme Court in Board of Muslim Wakfs, assuming that there are procedural infirmities in conducting survey and accepting the contention that the procedure is not followed before issuing Gazette Notification, it would not, perforce, change the status of the property from waqf property to non waqf property. It may only result in conducting of fresh survey. Thus, whenever a person disputes status of land as waqf land, he must avail remedy under section 6. Further, even assuming that prior to 1989 the persons were not aware of status of land in issue as waqf property, within reasonable time from date of publication in Gazette, the person must avail legal remedy. But, no such remedy was availed and gazette notification was allowed to be in force all these years.
21. As seen from the averments in the counter affidavit, according to the respondents, the waqf properties in question belong to the waqf institution i.e Dargah Hzt. Meer Momin Chup, Aliabad. The Dargah dates back to 15th century and during the reign of Quli Qutub Shah, large extent of land was dedicated to Sufi Saint as grant of Royal Courts patronage. Thus, it is not a waqf created newly in the year 1989 and notified in the Gazette. The 1989 Gazette notification only informs public at large that the subject property is waqf property.
PNR,J W.P.No.7570 of 2019 & batch 12
22. Petitioners placed reliance on the judgment in W.P.No.12275 of 1993 and batch of writ petitions affirmed by the Division Bench in W.A.No.745 of 2002 and batch. Following are the factors which distinguish those cases from the cases on hand. In the said writ petitions, though very same Gazette notification was challenged, but properties in issue were different. The petitioners in those writ petitions claimed that ORCs were granted to them in the year 1980, and they are owners of the concerned property and the writ petitions were instituted within a reasonable time of such notification. They contended that they were not put on notice before conducting survey and issuing gazette notification. On considering the issue in detail, this Court held that petitioners therein were not put on notice. The gazette notification was set aside, to the extent of properties in those writ petitions, on the ground that Section 4 was not complied. In the Writ Appeals, while upholding the decision of learned single Judge, the Division Bench granted liberty to the Wakf Board to assert its title. Be it noted that 1989 Gazettee deals with several Wakf properties. The land in these writ petitions is different from the land in those writ petitions.
23. Suffice to note that while petitioners trace title to the property to their vendors on a document claimed to have been executed by Smt Ouliya Begum w/o. Hasan Yar Khan, who according to petitioners were the pattadars, the Wakf Board refutes said contention on two counts. Firstly, it is an Inam land dating back to 15th century and that person is total stranger to the subject property; and secondly even the said document is only PNR,J W.P.No.7570 of 2019 & batch 13 'Ijara Nama' and not a sale deed. 'Ijara' is Arabic word. In Islamic jurisprudence it means a contract for renting/leasing of the services or the usufruct of a property generally for a fixed period and price. Petitioners also admit to this fact.
24. In paragraphs 13 and 14 of the affidavit filed in support of the writ petition No. 22949 of 2019, it is vaguely stated that before issuing Gazette Notification, petitioners and their vendors were not put on notice and records were not verified. In other writ petitions also similar submissions are made. In the common reply affidavit, it is asserted that their vendors/vendors of vendors were not put on notice and procedure prescribed by Section 4 was not followed. Two things to be noted on this aspect. Firstly, question of issuing notice to petitioners did not arise as they claim to have purchased pieces of the property in and around the year 2018, certainly after 09.02.1989. Therefore, they were no way in the picture when survey was conducted. Secondly, Wakf Act, 1954 and Wakf Act, 1995 do not contemplate issuing notice before publication in the Gazette. Notice contemplated under Section 4 is at the time of conducting survey. The averments are vague on the aspect of notice. Thus, Gazette Notification cannot be declared as illegal on the issue of notice even without a pleading/vague assertion that too by subsequent purchasers. In the reply affidavit also they have not elaborated on notice aspect.
25. In some of the writ petitions, the Pattadar Passbooks refer to 19.2.1998 proceedings of Mandal Revenue Officer and obviously Pattadar Passbooks were issued after that date. As per the ORC granted on 20.7.1996, it is seen that the Revenue Divisional Officer PNR,J W.P.No.7570 of 2019 & batch 14 records that claimants therein were in possession as on the cut off date as per the Act, 1950. It also records alleged sale deed dated 27.2.1945 executed by Smt Ouliya Begum and records that land was classified as Dasthagardhan and Smt Ouliya Begum was the inamdar. That being so, alleged partition deed dated 2.9.1960 contains different statement of possessory and ownership claim. In some writ petitions, petitioners refer to ORC granted on 20.06.1996. A copy of alleged sale deed dated 27.2.1945 is also filed.
26. The Court is not entering into correctness of these documents. But, considered these and other documents to, prima facie, appreciate the claim of entitlement to notice. Though vendors of petitioners who claim as pattadars are not before this Court but from material placed on record, it appears that for the first time their names are recognized by revenue authorities on 27.7.1996 or at about that time when ORC was issued and they were granted pattadar pass books after 19.2.1998. It appears, by the time survey was conducted and notified in the Gazette they were not recognized by the revenue authorities. Therefore, assuming that they were not put on notice, it is not stated how the vendors were entitled to notice and opportunity to appear before the Survey Commissioner. When a person contends that the Gazettee notification was not preceded by notice and opportunity, he must first assert how he was entitled to notice and opportunity. There is not even a whisper in the affidavits.
27. It is thus seen that vendors/vendors of vendors obtained ORC after 09.02.1989, and persons claiming to be pattadars are not before this Court. Further, on issue of notice also vague assertion is made. Thus, these cases are clearly distinguishable PNR,J W.P.No.7570 of 2019 & batch 15 from the Gowra Reddy and view taken in those cases do not come to the aid of petitioners.
28. Further, it is settled principle of law, needs no reiteration that merely because a person pleads that he was not put on notice, it is not necessary that writ Court should grant relief. The person has to prove that grave prejudice was caused to him and if only a notice was issued by Survey Commissioner, he would have satisfied his claim to subject property. There is no whisper on that aspect also. This is all the more necessary as gazette publication of 1989 is challenged after 30 years. Even assuming that there is dispute on dedication for pious purpose, since the gazette publication was made in the year 1989, presumption can be drawn about such dedication. At any rate clock cannot be put back after 30 years on issue of notice or opportunity. Writ remedy is an extraordinary remedy and equitable remedy. Writ Court need not grant relief on mere infraction of a statutory mandate unless prejudice is pleaded and proved. Petitioners miserably failed in persuading the Court to exercise extraordinary jurisdiction. It is also appropriate to note that petitioners are not even claiming to represent the vendors, but are fighting litigation as subsequent purchasers.
29. Writ remedy is an extraordinary remedy. There are no fetters on exercise of extraordinary jurisdiction. Mere availability of alternative remedy is no bar to entertain writ petition. However, ordinarily, writ Court do not entertain writ petition if the aggrieved person has an effective and efficacious remedy, more so if it is before a Judicial Tribunal, and relegates the party to avail such PNR,J W.P.No.7570 of 2019 & batch 16 remedy. Ordinarily, whenever, a person disputes the status of land as wakf land, he must knock the doors of Wakf Tribunal. However, Court may depart from this course and entertain Writ Petitions if Court notices grave illegality, procedural impropriety, lack of jurisdiction and competence, and ex facie illegal decision going to the root of the matter vitiating the decision per se, not on the merits of the decision, but on the decision making process, and undertakes judicial review without subjecting the party to alternative remedy, even if such remedy is efficacious and effective. To depart from the course of relegating litigant to avail alternative redressal mechanism, the petitioner must make out a case with cogent material and persuade the Court to exercise extraordinary jurisdiction. Petitioners must also avail writ remedy within a reasonable time from the date of an adverse decision/order/ notification, but cannot seek to assail a stale claim. Petitioners herein miserably failed on this aspect.
30. On the alleged sale transaction document dated 27.2.1945, it is asserted in the counter affidavit that it was only a lease deed and not a sale deed. This assertion of Wakf Board is not denied, but what is contended in the reply is that documents date back to 1915.
31. In the counter-affidavit, it is further stated that the Wakf records would disclose that the Wakf property was created more than 400 years back by the then ruler and all along it is reflected as Wakf property. There was an agreement dated 25 Urdubehisht 1303 Fasli for sanction of shares, pointing out status of land as Wakf. It is further asserted that in the early 1960s, the Survey PNR,J W.P.No.7570 of 2019 & batch 17 Commissioner surveyed the land and declared the subject land as Wakf and the present Surveyor followed due procedure before submitting his report. Documents are filed along with common counter in support of this assertion. These assertions are not denied, except vaguely stating that they are not relevant.
32. Further, in view of the specific stand of Wakf Board, unless, it is specifically asserted and established with cogent material that due procedure was not followed before submission of survey report, it has to be assumed that the Survey Commissioner, a statutory authority, followed due procedure before submitting his report, more so, when such challenge is mounted after 30 years.
33. At this stage, its apt to consider the decision of Hon'ble Supreme Court in Punjab Wakf Board Vs Sham Singh Harike21. By a common judgment Civil Appeal No. 92 of 2019 and Civil Appeal No. 93 of 2019 were disposed of by Hon'ble Supreme Court. 33.1. Punjab Wakf Board filed Civil Suit No.250 of 2001 in the Court of the Civil Judge, Senior Division to grant permanent injunction restraining lessee/defendants therein raising permanent construction on Wakf land. The defendants denied title claim of plaintiff. On constitution of Wakf Tribunal, suit was transferred to Wakf Tribunal. Defendants filed application to reject plaint contending that Wakf Tribunal has no jurisdiction. Wakf Tribunal rejected the said application and declared that it has jurisdiction to try the suit. Revision filed before the High Court was allowed. C.A.No.92 of 2019 is filed against the said decision of Punjab and Haryana High Court.
21
(2019) 4 SCC 698 PNR,J W.P.No.7570 of 2019 & batch 18 33.2. Punjab Wakf Board filed suit No.2 of 2007 in the Wakf Tribunal to grant possession of land admeasuring 29 Kanals 9 marlas in Khewat No. 224 and for permanent injunction against defendants from interfering and changing the nature of the property. It was alleged that though lease was cancelled, defendant did not handover possession of the suit land. Wakf Tribunal decreed the suit. Revision filed against said decree was allowed. Hence, Civil Appeal No.93 of 2019 was filed in the Supreme Court.
33.3. In Punjab Wakf Board, common judgment was rendered in two civil appeals. Issue considered was whether the suit filed before the Wakf Tribunal praying to grant decree of possession of suit property was maintainable. Supreme Court reviewed the decisions rendered earlier dealing with various provisions of the Act.
33.4. Supreme Court held as under:
"53. Coming to Section 83 which relates to bar of jurisdiction of civil court, the relevant words are "any dispute, question or other matter relating to a wakf or wakf property" which is required by or under this Act to be determined by the Tribunal. Thus, bar of jurisdiction of civil court is confined only to those matters which are required to be determined by the Tribunal under this Act. Thus, the civil court shall have jurisdiction to entertain the suit and proceedings which are not required by or under the 1995 Act to be determined. Thus, answering the question of jurisdiction, question has to be asked whether the issue raised in the suit or proceeding is required to be decided under the 1995 Act by the Tribunal, under any provision or not. In the event, the answer is affirmative, the bar of jurisdiction of civil court shall operate.
64. The judgment of this Court in Punjab Wakf Board v. Gram Panchayat [Punjab Wakf Board v. Gram Panchayat, (2000) 2 SCC 121] interpreting the Explanation, thus, held that the notification issued under Section 5 would be binding not only on those interested in the wakf but even strangers, claiming interest in the property in question, provided they were given notice in the inquiry under Section 4 preceding the notification under Section 5(2). The interpretation put by this Court in Punjab Wakf Board v. Gram Panchayat [Punjab Wakf Board v. Gram Panchayat, (2000) 2 SCC 121] to the Explanation added by the Amendment Act, 1984 can equally be applied to interpretation of the Explanation to sub-section (1) of Section 6 of the 1995 Act.
"65. Applying the above ratio to the interpretation of the Explanation of Section 6(1) of the 1995 Act the following two conclusions can be drawn :
PNR,J W.P.No.7570 of 2019 & batch 19 65.1. Any person interested in the wakf property which is specified as wakf property in the list of wakfs published under Section 5 can also raise the dispute regarding the wakf property by instituting a suit in a Tribunal. Limitation for filing such suit by any person interested in the wakf property is one year as per Section 6(1) proviso.
65.2. The finality of the wakf property being included in the list of wakfs published under Section 5(2) shall not be on a person to whom a reasonable opportunity had not been afforded to represent his case by notice served on him during the course of relevant inquiry under Section
4."
......
67. As per Section 6 sub-section (1) if any question arises as to whether a wakf property in the list of wakfs is wakf property or not, a suit can be instituted in a Tribunal for the decision of the question which decision shall be treated as final. Limitation for such suit was also provided in the proviso as one year from the date of the publication of the list of wakfs. Sub-section (5) of Section 6 contained the provision barring a suit in any court after the commencement of the Act in relation to any question referred to in sub-section (1). In Suit No. 250 dated 10-9-2001 (RBT No. 84 dated 9-10-2006, Punjab Wakf Board v. Sham Singh) the question has arisen as to whether the suit property is a wakf property or not. We have noticed pleadings in the written statement filed by the defendant in the above suit where it was specifically denied that the suit property is a wakf property. Thus, within the meaning of sub-section (1) of Section 6 question that whether a suit property is a wakf property or not has arisen. Thus, the suit wherein the above question has arisen ought to be considered by the Tribunal and the High Court clearly erred in allowing the revision filed by the defendant by its order dated 20-9-2010 [Sham Singh v. Punjab Wakf Board, 2010 SCC OnLine P&H 13109] .
68. Thus, the view of the High Court that right, title and interest of a non-Muslim to the wakf in a property cannot be put in jeopardy is contrary to the statutory scheme as contained in Section 6 of the 1995 Act. Thus, the reason of the High Court to allow the revision petition is wholly unfounded. The defendant in the written statement has pleaded that the suit property is not wakf property. When issue in the suit is as to whether suit property is wakf property or not it is covered by specific provision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal under Section 83 and bar under Section 85 shall come into existence with regard to jurisdiction of the civil court.
70. Civil Appeal No. 92 of 2019 is, thus, fully covered by the judgment of this Court in Haryana Wakf Board v. Mahesh Kumar [Haryana Wakf Board v. Mahesh Kumar, (2014) 16 SCC 45 : (2015) 3 SCC (Civ) 426] . The defendant having pleaded that the suit property is not a wakf property, the question has to be decided by the Tribunal. Thus, the High Court has committed error in allowing the revision petition. Thus, this appeal deserves to be allowed.
72. The provision contained in the proviso to Section 6(1) 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 shall be applicable to 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.
73. When Section 6 sub-section (1) provides for raising a dispute regarding wakf property in a period of one year, it applies to every person who wants to dispute the list except those who have been not served notice under Section 4(1)."
(emphasis supplied)
34. From the principles laid down by Hon'ble Supreme Court in Punjab Wakf Board, if question raised in the case is required to be PNR,J W.P.No.7570 of 2019 & batch 20 decided under the Wakf Acts, 1954 and 1995 by the Wakf Tribunal, the bar of jurisdiction of Civil Court shall operate. Further, notification issued under Section 5 would be binding not only on the persons interested in the Wakf but even on strangers claiming interest in the property in question. Though, Section 6 (1) prescribes limitation of one year for filing suit, it does not apply to a person to whom reasonable opportunity was not afforded by serving notice during the course of inquiry under Section 4. Such person can contest the status of land notwithstanding one year limitation prescribed in Section 6.
35. In the cases on hand, petitioners can not claim themselves as persons interested by the time notification was issued as they claim to have purchased plots of land, out of larger extent much later to 09.02.1989. In the affidavits filed in support of the writ petitions, petitioners assert that it is patta land and not Wakf or Inam. In other words, petitioners are disputing the status of land as Wakf land. Suffice to note that if a person is disputing the status of wakf land, he has to avail remedy under Section 83 of the Act, 1995. Both parties seek to rely on several documents in support of their claim. It requires leading of evidence. Writ Court in exercise of power of judicial review under Article 226 of the Constitution of India cannot enter into disputed questions of fact. In all such cases, parties must be relegated to civil law remedy. The Supreme Court in the Pubjab Wakf Board held that whenever a party is disputing the status of land notified as wakf land, the remedy is to institute suit before the Wakf Tribunal. The wakf Tribunal is competent to adjudicate the dispute.
PNR,J W.P.No.7570 of 2019 & batch 21
36. These writ petitions are filed after 30 years assailing gazette notification dated 09.02.1989 by contending that there was no notice and opportunity to pattadars when survey was conducted under Section 4. On this aspect, there is a two pronged restraint on petitioners. If petitioners claim to step into the shoes of their vendors delay and laches would stair down the barrel. On the contrary, if the petitioners seek to assert their right independently, claiming interest in the property as a subsequent purchasers, they cannot plead opportunity of hearing under Section 4 as by the time survey was conducted and gazette publication was made, they were not in the picture.
37. A person is entitled to enforce his right, including right to property by availing remedy under Article 226 of the Constitution of India. Judicial review of administrative action is an important facet, an essential feature, basic structure of the Constitution of India. It is the corner stone of our constitutional framework. However, such person cannot take his own time to assert his right. Though there is no limitation prescribed in the Constitution, such right has to be asserted within a reasonable time. Delay and laches in invoking extraordinary jurisdiction of this Court under Article 226 is as relevant as any other aspect. A title to property can validly pass on to subsequent purchaser only if the vendor has a valid title. Thus, by virtue of purchases made by these petitioners no new right accrued to them nor their right is affected by any decision of competent authority after such purchase. Thus, whatever is asserted by petitioners relates to title claim of vendors/ vendors to vendors. The title of vendors/ vendors to vendors is in cloud. Petitioners seek to clear this cloud by challenging the 1989 PNR,J W.P.No.7570 of 2019 & batch 22 gazette. What appeals to their vendors on delay and laches would equally apply to petitioners and recent sale transactions cannot revive cause of action.
38. In the following decisions, Supreme Court succinctly put the scope of exercise of power of judicial review when there are laches in knocking the doors of the High Court under Article 226 of the Constitution of India.
38.1. In State of Jammu and Kashmir v. R.K. Zalpuri and others22, the very issue of delay in instituting the writ petition after long lapse of time was considered. It was a case of dismissal and challenge was on the ground of violation of procedural safeguards incorporated into the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules. Disciplinary action resulted in imposing punishment of dismissal from service by order dated 06.09.1999. This was challenged by filing writ petition in the High Court on 18.02.2006. There was a delay of 7 years in filing writ petition.
38.2. The State Government raised objection on maintainability of writ petition on the ground of delay and laches. Without accepting this plea, punishment was set aside holding that Rule 34 of the Classification, Control and Appeal Rules was not complied. Even in appeal the Division Bench has not considered objection on delay in filing writ petition. Hence, appeal before Supreme Court. Supreme Court held that the delay and laches were not satisfactorily explained and, therefore, Writ Petition was not maintainable. 22
(2015) 15 SCC 602 PNR,J W.P.No.7570 of 2019 & batch 23 38.3. Supreme Court reviewed the precedent decisions and held:
"20. Having stated thus, it is useful to refer to a passage from City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala, MANU/SC/8250/2008 : (2009) 1 SCC 168], wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus: (SCC p. 175, para 30) "30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors."
xxxx
26. In the case at hand, the employee was dismissed from service in the year 1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ court.
(emphasis supplied) 38.4. In this regard reference to a passage from Karnataka Power Corpn. Ltd. v. K. Thangappan23 would be apposite:
"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."
(emphasis supplied) 38.5. After so stating, the Supreme Court, by referring to the authority in State of M.P. v. Nandlal Jaiswal24, restated the principle articulated in earlier pronouncements to the following effect:
"9.... the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent 23 (2006) 4 SCC 322 24 (1986) 4 SCC 566 PNR,J W.P.No.7570 of 2019 & batch 24 and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction."
(emphasis supplied) 38.6. In Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu25, it is ruled thus:
"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant--a litigant who has forgotten the basic norms, namely, 'procrastination is the greatest thief of time' and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis." (emphasis supplied) Supreme Court further held, "26. In the case at hand, the employee was dismissed from service in the year 1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ court."
(emphasis supplied) 38.7. In State of Gujarat v. Shree Ratnakar Enterprise26, delay and laches in approaching High Court was considered. Supreme Court held:
25
(2014) 4 SCC 108 26 (2016) 13 SCC 186 PNR,J W.P.No.7570 of 2019 & batch 25 "8. We have gone through the record. At no stage was the alleged policy dated 31-12-1981 either referred to or relied upon. No submission was ever advanced to project the entitlement or the extent thereof under this policy. The original application simply made a demand that the respondent be allotted 1500 ac of land from Survey No. 141 of Village Mundra. It is true that certain allotments were made from and out of Survey No. 141 of Village Mundra but after the setting up of special economic zone at Mundra all those applicants have surrendered their lands. The stand of the appellant State is very clear and categorical that there was no land available at Village Mundra. Further, the application having been rejected by the District Collector on 18-12-1999, revision was preferred more than five years later. This revision was rejected on the ground of delay and was taken up in challenge before the High Court again after a delay of five years. In the circumstances, the Single Judge of the High Court was right in observing that the respondent had remained indolent in pursuing its remedy and that because of delay and laches on its part, no indulgence could be shown. In our considered view, the Division Bench was not justified in reversing the judgment and order passed by the Single Judge, nor was it right in directing the Collector to allot to the respondent land for salt production from any other survey number." (emphasis supplied) 38.8. At this stage, it is apt to note that view taken by the Hon'ble Supreme Court in Madanuri Sri Rama Chandra Murthy vs. Syed Jalal27. In the said case, Muthavalli of Wakf Institution filed O.S.No.59 of 2013 in the Wakf Tribunal seeking cancellation of sale deed dated 12.01.2013 claiming that land in issue is wakf land and no private person can alienate wakf land. Defendants opposed the prayer by contending that the suit schedule property was not notified as a wakf property. Thus, it was a converse case.
While considering the issue, Hon'ble Supreme Court examined the relevant provisions of old and new Acts, on scope of survey enquiry, Survey Commission report publication in the gazette and delay in challenging non-inclusion in the gazette. Supreme Court held:
"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 will once again examine the list sent to it with due application of 27 (2017) 13 SCC 174 PNR,J W.P.No.7570 of 2019 & batch 26 its mind and only thereafter the same will be sent to the Government for notifying the same in the Gazette. Since the list is prepared and published in the Official Gazette by following the aforementioned procedure, there is no scope for the plaintiff to get the matter reopened by generating some sort of doubt about Survey Commissioner's Report. Since the Surveyor's Report was required to be considered by the State Government as well as the Wakf Board (as the case may be), prior to finalisation of the list of properties to be published in the Official Gazette, it was not open for the High Court to conclude that the Surveyor's Report will have to be reconsidered. On the contrary, the Surveyor's Report merges with the gazette notification published under Section 5 of the Wakf Act.
17. As held by the Tribunal as well as the High Court, the property in question does not find place in the gazette notification published under Section 5 of the Wakf Act. In other words, the property in question is not notified in the Official Gazette as wakf property. If anybody including the Wakf Board or the plaintiff was aggrieved by such non-inclusion of the property in the list notified, the aggrieved person should have raised the dispute under Section 6 within a period of one year from the date of publication of the gazette notification in the matter. The plaintiff has practically questioned the non-inclusion of the property in the list and the validity of the list notified in the Official Gazette dated 28-
6-1962 after the lapse of about 50 years i.e. in the year 2013 by filing the present suit." (Emphasis supplied)
39. In the cases on hand, the Gazette publication was issued on 09.02.1989. By this gazette notification, public at large are informed about aspects noted in the Gazette notification of list of wakf properties. Once Gazette is published, public are deemed to know such publication. Petitioners were not in the picture when gazette was published. Merely because they claim to have purchased land much later, it does not give them new cause of action, by virtue of such purchase, to challenge the gazette publication dated 09.02.1989 after 30 years on the specious ground that their vendors were not put on notice. Except vaguely stating that procedure was not followed before issuing gazette notification there is no averment as to why their vendors did not assail the gazette notification, assuming that due procedure was not followed. Thus, as issue of validity of gazette relates back to 1989, these writ petitions are hit by delay and laches. The writ petitions fail on this ground also. Merely because registering authorities entertained deeds of conveyance on subject land till recently, but stopped due to certain complaints filed against such PNR,J W.P.No.7570 of 2019 & batch 27 registration is no ground to test the validity of gazette publication dated 09.02.1989 after long lapse of time on the touchstone of notice and opportunity. Registering a deed of conveyance is entirely different from testing the validity of gazette publication.
40. As admitted by petitioners also in their reply and as fairly stated by learned counsel for petitioners, the only issue for consideration is whether there were procedural infirmities vitiating the gazette publication notifying large extent of land in different survey numbers of Boduppal village, referred to in these writ petitions. Procedural infirmity i.e., violating mandate of Section 4 of the Act is not demonstrated with cogent material. Further, even assuming that there were procedural lapses court is not inclined to go into that aspect as vendors of petitioners, who claim to be pattadars are not assailing such violation and that the challenge to gazette publication dated 19.02.1989 is made after 30 years. Thus, no case is made out to invalidate gazette publication, dated 09.02.1989, and the petitioners may have to avail remedy under Section 6 read with Section 83 of the Wakf Act, 1995 to assert their title, if so advised, or to avail any other remedy.
41. As per communication from State Wakf Board to the Registering Authorities, the subject land is treated as wakf land. Once a land is notified as wakf land and information is furnished to the registering authority, the registering authority is restrained from entertaining deeds of conveyance. Thus, unless the subject land is de-notified as wakf land they cannot be mandated to register the deeds of conveyance. Merely because some transactions were made earlier is no ground to perpetrate the PNR,J W.P.No.7570 of 2019 & batch 28 illegality. The scope of Section 22-A was elaborately considered by the Full Bench of this Court in Vinjamuri Rajagopala Chary v. State of Andhra Pradesh28 and in terms thereof the decision of registering authorities refusing to register deeds of conveyance on subject lands cannot be faulted.
42. For the aforesaid reasons, the Writ Petitions fail. They are accordingly dismissed. However, it is made clear that there is no expression of opinion on merits. The discussion on various aspects is with reference to maintainability of claim against gazette publication impugned in the writ petitions. Parties are left to urge all pleas as available in law in appropriate proceedings. Pending miscellaneous petitions shall stand closed.
__________________________ JUSTICE P.NAVEEN RAO Date: 10.03.2020 tvk/kkm 28 2016 (1) ALT 570 (F.B) PNR,J W.P.No.7570 of 2019 & batch 29 HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NOs.7570, 8130, 9151, 11539, 22949, 23185, 23229, 23301, 23320, 23750, 23760, 23777, 24235, 24236, 24396, 24416, 24448, 24531, 24587, 24684, 24910, 25094, 25165, 25245, 25621, 25683 & 25691 OF 2019 Date: 10.03.2020 Tvk/kkm