THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR
WRIT APPEAL No.664 of 2012
JUDGMENT: (Per the Hon'ble the Chief Justice Alok Aradhe)
Mr. Vedula Srinivas, learned Senior Counsel for the
appellant.
2. This intra court appeal emanates from the order dated
25.04.2012 of the learned Single Judge by which W.P.No.11788
of 2012 preferred by the appellant has been disposed of with
liberty to the appellant to approach the Andhra Pradesh Wakf
Tribunal.
3. Facts
giving rise to filing of this appeal briefly stated are that the appellant claims to have purchased Ac.3.29 guntas of land situated in Khalsa Ibrahimpatnam Village, Ibrahimpatnam Mandal, Ranga Reddy District vide registered sale deed dated 22.03.2004. Notification dated 17.07.2008 was issued by way of addendum to earlier notification dated 16.02.1989 by which land belonging to the 3rd respondent - Agha Mehdi Ali Mutavalli Dargah Hazarath Peeram Hussain of Ibrahimpatnam Village was ::2::
declared to be wakf property and an order dated 06.02.2012 passed by the Revenue Divisional Officer granting occupancy rights certificate in favour of the 3rd respondent insofar it pertains to land bearing Sy.No.11 of Ibrahimpatnam Village was set aside. The appellant thereupon challenged the notification dated 17.07.2008, which was issued by way of addendum to earlier notification dated 16.02.1989 as well as order dated 06.02.2012 issued by the Revenue Divisional Officer in the writ petition.
4. The learned Single Judge by an order dated 25.04.2012 inter alia held that the law relating to Wakfs is a special codified law and the Supreme Court in Board of Wakf, West Bengal vs. Anis Fatma Begum 1 has cautioned the High Courts from entertaining the disputes relating to Wakfs, which include wakf property, straightaway under Article 226 of the Constitution of India. Accordingly, the writ petition preferred by the appellant was dismissed. In the aforesaid factual background, this intra court appeal has been filed.
1 (2010) 14 SCC 588 ::3::
5. Learned Senior Counsel for the appellant while inviting the attention of this Court to the order dated 20.06.2011 passed by a Division Bench of this Court in W.P.No.989 of 2007 has pointed out that whenever any property is declared as wakf property, a notice to the interested person has to be issued. It is further submitted that in the instant case before issuing the impugned notification dated 17.07.2008, no notice was issued to the appellant and the same was issued in violation of the law laid down by a Division Bench of this Court and is ab initio void. It is therefore contended that the writ petition before this Court under Article 226 of the Constitution of India is maintainable. It is also urged that the learned Single Judge ought to have appreciated that the appellant has assailed the validity of order dated 06.02.2012 by which occupancy rights certificate was issued in favour of the 3rd respondent and the aforesaid order could not have been challenged by the appellant before the Wakf Tribunal.
6. We have considered the submissions made by the learned Senior Counsel for the appellant and have perused the record.
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7. Notification dated 17.07.2008, which was issued by way of addendum to the earlier notification dated 16.02.1989, has been issued without notice to the appellant. Therefore, the same was passed in violation of the principles of natural justice. Supreme Court in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others 2, which has been reiterated by the Supreme Court in Godrej Sara Lee Ltd. Vs. The Excise and Taxation Officer-cum-Assessing Authority & Ors., 3 has carved out the following exceptions to the rule of availability of alternative remedy, namely, (1) where the order is passed in violation of principles of natural justice; (2) where the vires of a provision is challenged; and (3) where the order is per se without jurisdiction.
8. In the instant case, the learned Single Judge ought to have appreciated that the appellant could not have been relegated to avail the remedy before the Wakf Tribunal. In any case, the learned Single Judge ought to have appreciated the validity of the order dated 06.02.2012 which needs examination and the appellant could not have challenged the order dated 06.02.2012 before the Wakf Tribunal. However, the learned Single Judge 2 (1998) 8 SCC 1 3 AIR 2023 SC 781 ::5::
has failed to appreciate the aforesaid aspect of the matter. The impugned order is therefore set aside. Let the writ petition be listed before the learned Single Judge. The learned Single Judge is requested to deal with the writ petition on merits.
9. Accordingly, the writ appeal is allowed. There shall be no order as to costs.
As a sequel, miscellaneous petitions, pending if any, stand closed.
____________________________ ALOK ARADHE, CJ ____________________________ N.V.SHRAVAN KUMAR, J Date: 10.11.2023 ES