Shaik Shamshunnisa Begum vs State Of Andhra Pradesh,
2021 Latest Caselaw 5579 AP

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                    WRIT PETITION No.5190 of 2021

ORDER:

This writ petition is filed under Article 226 of the Constitution

of India seeking the following relief:

"to issue a Writ, Orders or Direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in categorising the petitioner‟s land in „prohibited list‟ for an extent of Ac.0-50 cents in Sy.No.94-A1, Kollur Panchayat and Mandal, Kurnool District without following due process of law as illegal, arbitrary, colourable exercise of power and violative of Article 14, 21 and 300-A of the Constitution of India and violative of principles of natural justice, consequently direct the respondent No.3 to pass orders on petitioner‟s representation in "Spandana Programme" dated 25.11.2019 by duly granting No Objection Certificate within a time bound programme in respect of the petitioner‟s property and pass."

2. The case of petitioner in brief is that one Mr. Roshi Reddy and

others of Peddapadu Village of Kurnool District sold land

admeasuring an extent of Ac.1-00 cents, from their ancestral

property situated in Sy.No.94-A1 of Kallur Panchayat and Mandal,

Kurnool District to the petitioner's sister Smt. Shaik Khamrunnisa

Begum, W/o. Late Abdul Khayam, resident of Vaddegeri, Kurnool

vide Registered Sale Deed bearing Document No.966, dated

02.03.1982 of Sub-Registrar's Office at Kallur, Kurnool District.

3. Smt. Shaik Khamrunnisa Begum gifted the land admeasuring

an extent of Ac.0-50 cents in Sy.No.94-A1 of Kallur Panchayat and

Mandal, Kurnool District to the petitioner vide Gift Deed bearing

Document No.2241, dated 09.04.1994 of Sub-Registrar's Office at

Kallur. Thereafter, the petitioner made an application to respondent

No.5 for mutating her name in the revenue records. On verifying the MSM,J WP_5190_2021

revenue records, the respondent authorities issued pattadar pass

book and title deed in favour of the petitioner.

4. For the reasons best known to her, the petitioner's sister

approached Sub-Registrar's Office, Kalluru to register Gift Settlement

Deed in favour of her husband for the land admeasuring an extent of

Ac.1-00 cents in Sy.No.94-A1. In turn the Sub-Registrar refused to

register the same, as the petitioner's sister owns only Ac.0-50 cents.

Aggrieved by the same, the petitioner's sister filed W.P.No.2439 of

2013 before the Common High Court of Andhra Pradesh at

Hyderabad showing Sy.No.94-A instead of Sy.No.94-A1 seeking to

issue Writ of Mandamus, directing the respondents to receive and

register Gift Settlement Deed and obtained order in her favour on

30.01.2013. On receipt of said order, she approached Sub-

Registrar's Office at Adoni and got the Gift Settlement Deed

registered in favour of her husband.

5. On coming to know about the same, the petitioner filed suit in

O.S.No.132 of 2015 before the Special Judge for Trial of Cases and

SCs & STs (PoA) Act-cum-VI Additional Sessions Judge, Kurnool. On

considering the material placed on record, the Trial Court delivered a

Judgment on 25.10.2017 in favour of petitioner and the same is in

force as of now. Thus, it is clear that the petitioner is the owner and

possessor of land admeasuring an extent of Ac.0-50 cents in

Sy.No.94/A1 of Kalluru Village, Kurnool District.

6. It is contended that the petitioner is suffering from old age

aliments and she is in severe financial crisis to meet day-to-day

medical and other expenses. Since the petitioner does not have any

other source of income, she decided to alienate her land to third MSM,J WP_5190_2021

parties. Therefore, the petitioner approached Sub-Registrar's Office

at Kallur to register the document. Then the petitioner came to know

that her land is included in the list of prohibited properties notified

under Section 22-A of the Registration Act, 1908 and she was

advised to get 'No Objection Certificate' from the concerned Revenue

Office or Chief Executive Officer of Waqf Board.

7. It is further contended that, originally the land Mr. Roshi

Reddy and Lakshmi Reddy of Peddapadu Village, Kurnool District,

were the owners, who alienated subject property to petitioner's sister

in the year, 1982. Since then, it is in possession and enjoyment of

the petitioner and their family members and it is a freehold property.

On clear observation of the documents filed along with suit, the Trial

Court granted permanent injunction in O.S.No.132 of 2015 in favour

of petitioner restraining the defendants therein from interfering with

possession and enjoyment of the petitioner over the suit schedule

property, as such, it is clear that the subject property is a freehold

property belonging to the petitioner.

8. Aggrieved by the illegal action of the respondents, the

petitioner made an application on 25.11.2019 in Spandana

Programme addressing to respondent No.3, ventilating her grievance.

Then, the respondents directed the petitioner to approach Waqf

Board to delete the entries made in prohibited property list under

Section 22-A of the Registration Act, situated in Sy.No.94/A as a

Waqf Board property, whereas the land in Sy.No.94/A1 is transferred

in favour of the petitioner under gift deed.

9. It is contended that, without petitioner's knowledge and

intimation, the respondents have added her land in the prohibited MSM,J WP_5190_2021

property list. The petitioner approached Wakf Board and requested

to direct the registering authorities to receive document and

entertain registration of the property admeasuring an extent of Ac.0-

50 cents in Sy.No.94-A1 of Kallur Panchayat and Mandal, Kurnool

District without reference to Section-22A of the Stamps and

Registration Act, 1908 and requested to issue a direction as claimed

in the writ petition.

10. The respondent No.5 filed a counter affidavit stating inter alia

that:-

The land admeasuring an extent of Ac.0-50 cents in Sy.No.94-

A1, Kollur Panchayat and Mandal, Kurnool District is included in the

list of prohibited properties list notified under Section 22-A(1) of the

Registration Act, 1908. As per the communication made by the Chief

Executive Officer, Hyderabad vide letter

No.F.No.01/Prot/AP/Genl/2016, dated 16.11.2016, to the

Commissioner and Inspector General of Registration and Stamps

Department, it was disclosed that the land in question is a Wakf

Board land and communicated the same to the Sub-Registrar. As per

Section 51 of Wakf Board Act, 1955, the alienation of Wakf property

is prohibited. As per the Section 36-A of the Wakf Act,1954, the

alienation of Wakf property without sanction of the Board is void.

Thus, there is total prohibition against alienation of Wakf Properties

both under the old enactment and under new enactment, without

permission of the Wakf Board. The land in question is prohibited for

registration as per Section 22-A (1) (c) of the Registration Act, 1908.

11. It is contended that Section 22-A of the Registration Act, 1908

was incorporated by the Act No.4 of 1999 to empower the State MSM,J WP_5190_2021

Government to notify the registration of such documents or class of

documents as opposed to public policy and to reject their registration.

The Hon'ble Supreme Court in State of Rajasthan Vs. Basant

Nahata1 and High Court of Andhra Pradesh at Hyderabad in

W.P.No.14099 of 2013 held that provisions of Section 22-A inserted

by the Registration (A.P. Amendment) Act, 1999 is unconstitutional

and struck down Section 22-A on the ground that public policy was

not defined precisely.

12. However, deficiencies as observed by the State of Andhra

Pradesh in view of the observations of the Hon'ble Supreme Court to

decide to amend the Registration Act, 1908 suitably by specifying the

classes of documents prohibiting them from registration. Accordingly,

the of Section 22-A was brought into existence by the Amendment Act

No.19 of 2007 (Section 22-A of the Act). Thus, the property of the

petitioner is included in prohibited property list notified under Section

22(A)(1)(c) of the Registration Act, 1908. Therefore, refusal to register

the document of the 5th respondent by Chief Executive Officer, Wakf

Board and thereby act of the respondent authorities in refusing to

register the document is illegal, arbitrary and requested to dismiss the

writ petition.

13. The respondent No.6/A.P. State Waqf Board also filed counter

affidavit contending that the present writ petition is not

maintainable, as such the petition is liable to be dismissed and

stated as follows:

14. The petitioner has wrongly invoked the writ jurisdiction

inspite of settled law that when there is a dispute as to the title or a

2005 (7) SCALE 164 MSM,J WP_5190_2021

cloud is cast on the title of the land, the same cannot be adjudicated

in writ jurisdiction. The High Court of Andhra Pradesh at Hyderabad

in Vinjamuri Rajagopala Chary Vs. The Government of Andhra

Pradesh2 laid down guidelines to the aggrieved parties either to

make a representation before the competent authority or to

approach competent court to declare the title in respect of the land

claimed by them, which is included in the prohibited property list.

15. The subject land bearing Sy.No.94-1 is an Inam land covered

by T.D.No.3705 measuring Ac.9.64 cents along with other land

endowed as Waqf on the basis of Survey Commissioner's report

dated 30.04.1956 and the same was published in A.P. Gazette

No.43-A, dated 24.10.1963 at Sl.No.3147. The subject land is

dedicated to Almighty God and it belongs to Tomb of Aithakad Shah

in Kurnool. During British Rule Inams enquiry was made and all the

Inams were recorded in Inam Fair Register. It is a settled law that

the Inam lands are inalienable. The Hon'ble Supreme Court in

Sayyed Ali and others Vs. Andhra Pradesh Waqf Board3 made it

clear that once a Waqf is always a Waqf and it vests with Waqf

Board. It was also made clear that, when the entries in the Gazette

Notification are not challenged within a period of one year as laid

under Section 6 of Waqf Act 1955, as claimed by person is barred by

limitation. The Andhra Pradesh Government enacted A.P. (AA)

Inams Abolition and Conversion into Ryotwari Act, 1956 as

amended by Act 16 of 2013 with retrospective effect from

26.11.1956. All inams abolished except lands belonging to

charitable and religious institutions. As per proviso to Section 4 of

2016 1 ALT (550)

AIR 1998 S.C. (972) MSM,J WP_5190_2021

the Act the rights of charitable and religious institution are

protected for the entitlement of Ryotwari patta and that for any

reason by mistake or otherwise the patta is given to third party it

will not affect the rights of the institution. At the time of survey

enquiry one Syed Saheb alias Gulazar Ali Shah was the Mutwalli

managing the institution and has alienated the property. The

Mutawalli/Manager has no right of alienation. In case the

Mutawalli/Manager had executed any clandestine sale deed, the

same is hit by Section 10 of Indian Registration Act, 1963. Under

Section 107 of Waqf Act 1995 the provisions of Limitation Act are

not applicable to Waqf lands for recovery. Any person who is in

illegal occupation of Waqf land falls under the definition of

encroacher as defined under Section 3(ee) of Waqf Act, 1995 besides

transaction under Section 52-A of Waqf Act, 1995.

16. The respondent No.5 being a public servant is bound by

Section 22-A of Indian Registration Act, so he was justified in

refusing to register the document presented by the petitioner in

respect of subject land. The petitioner has to approach Waqf

Tribunal as required under Section 83(2) of Waqf Act 1995 for

adjudication of her dispute. It is a settled law as laid down by the

Apex Court that all waqf disputes are to be decided by the Waqf

Tribunal alone and the writ jurisdiction cannot be invoked at all and

requested to dismiss the writ petition with exemplary costs by

passing appropriate orders.

17. During hearing, Sri Chinnappa Reddy, learned counsel for the

petitioner reiterated the contentions urged in the writ petition.

MSM,J WP_5190_2021

18. Whereas the learned Assistant Government Pleader for Stamps

and Registration supported the action of the respondents in all

respects while refuting the contentions of petitioner and requested to

dismiss the writ petition.

19. A copy of the Gazettee No.43-A, dated 24.10.1963 containing

list of Waqf properties is placed on record to establish that the land

in Sy.No.94/A admeasuring an extent of Ac.9-64 of Kallur Panchayat

and Mandal, Kurnool District is placed on record to substantiate the

contention of the sixth respondent.

20. Considering rival contentions, perusing the material available on

record, the point that need to be answered by this Court is as follows:

Whether the subject land admeasuring an extent of Ac.0.50 cents in Sy.No.94/A1 of Kallur Panchayat and Mandal, Kurnool District is part of Waqf property notified in the Andhra Pradesh Gazette No.43-A, dated 24.10.1963. Whether the letter addressed to the respondent No.5/Sub- Registrar by respondent No.6/Chief Executive Officer, Waqf Board vide letter No.F.No.01/Prot/AP/Genl/2016, dated 16.11.2016 with a request not to register any property belonging to Waqf Board in favour of any other person or alienating the property as Inams be declared as illegal, arbitrary and violative of Article 300-A of the Constitution of India ? If not, whether a direction as claimed by this petitioner be issued?

P O I N T:

21. It is an undisputed fact that the land admeasuring an extent of

Ac.9-64 cents in Sy.No.94/A is notified as 'waqf property' and the

same was published in Andhra Pradesh Gazette No.43-A, dated

24.10.1963.

MSM,J WP_5190_2021

22. The main contention of the petitioner is that the land in

Sy.No.94/A1 is not sub-divided from Sy.No.94/A and Sy.No.94/A1 is

not a part of Sy.No.94/A. As such the land admeasuring an extent of

Ac.0-50 cents in Sy.No.94/A1 cannot be included in the prohibited

property list and therefore, the very inclusion of the property in

prohibited property list is illegal and arbitrary. No doubt, a gift deed

was executed in favour of the petitioner by her sister Smt. Shaik

Khamrunnisa Begum, W/o. Late Abdul Khaym vide Document

bearing No.2241 of 1994, dated 09.04.1994 of Sub Registrar Office,

Kallur, Kurnool District and it was purchased by petitioner's sister

Smt. Shaik Khamrunnisa Begum, W/o. Late Abdul Khaym from one

Rosi Reddy and others of Peddapadu, Kurnool District vide registered

Sale Deed Document bearing No.966, dated 02.03.1982 of Sub-

Registrar Office, Kurnool District. The land in Sy.No.94/A is sub-

divided into two survey numbers i.e, Sy.No.94/A1 and Sy.No.94/A2.

A copy of FMB is also placed on record to show that the land

admeasuring an extent of Ac.9.64 cents in Sy.No.94/A is sub-divided

into Sy.Nos.94/A1 and Sy.No.94/A2. Thus, the land in Sy.No.94/A

is sub divided in the year 2018, whereas the property was gifted in

the year 1994. In gift deed was executed in favour of the petitioner is

shown in respect of land in Sy.No.94/A1, which was purchased by

the sister of the petitioner from Mr. Rosi Reddy and others by way of

Sale Deed bearing Document No.966, dated 02.03.1982 of Sub-

Registrar Office, Kurnool District.

23. The name of petitioner is also mutated in the revenue records

and she was issued pattadar pass books and title deeds by the

respondent No.3/Tahsildar and she is in peaceful possession and MSM,J WP_5190_2021

enjoyment of the land admeasuring an extent of Ac.0.50 cents in

Sy.94/A1 of Kallur Panchayat and Mandal, Kurnool District.

24. The petitioner filed O.S.No.132 of 2015, on the file of the

Special Judge for Trial of Cases under SCs & STs (PoA) Act-cum-VI

Additional Sessions Judge, Kurnool for grant of permanent

injunction restraining the defendants and their men from interfering

with the peaceful possession of the petitioner's over the schedule

property for registering the land admeasuring an extent of Ac.0.50

cents in Sy.No.94/A1 of Kallur Panchayat and Mandal, Kurnool

District.

25. The sixth respondent-A.P. State Wakf Board is not a party to

O.S.No.132 of 2015 and the suit was filed only for injunction

simplicitor. Hence, the decree and judgment obtained by the

petitioner is not binding on the sixth respondent. Copy of the decree

in O.S.No.132 of 2015 placed on record by this petitioner is of no

avail to substantiate the contention of the petitioner. In any view of

the matter, it is clear from the record that the property bearing

Sy.No.94-A, Kollur Panchayat is notified as Waqf, a copy of Gazette

No.43-A dated 24.10.1963 is placed on record to substantiate the

contention of sixth respondent. The notification was not challenged

by anyone and thereafter the land in Sy.No.94-A1 was sub-divided

later. As discussed in the earlier paragraphs, assigning Sy.No.94/A1

& 94/A2, as such the land belonging to Waqf is divided and being

enjoyed the petitioner and her sister - Shaik Khamrunnisa Begum.

Merely because, the property was purchased and alienated further

without any title by the original vendor - Mr. Roshi Reddy and others

of Peddapadu, Kurnool District, that will not confer any title on the MSM,J WP_5190_2021

purchaser or the alienee. Hence, the purchasers or alienees will not

get any title to the property when once it is notified as Waqf in the

Gazette referred above.

26. The relief claimed by the petitioner is to declare the action of

the respondents in categorizing land of an extent of Ac.0-50 cents in

Sy.No.94-A1, Kollur Panchayat and Mandal, Kurnool District, in the

list of prohibited properties from registration as illegal, arbitrary and

violative of Articles 14, 21 and 300-A of the Constitution of India.

27. The petitioner allegedly became owner of the property of

Ac.0-50 cents in Sy.No.94-A1, under registered document executed

by the person who had no title to the property, as contended by the

sixth respondent, alienation of which is prohibited under

Section 22-A(1)(c) of the Registration Act, 1908. According to

Section 22-A(1)(c) of the Registration Act, 1908, documents relating

to transfer of property by way of sale, agreement of sale, gift,

exchange or lease exceeding (ten) 10 years in respect of immovable

property, owned by Religious and Charitable Endowments falling

under the purview of the Andhra Pradesh Charitable and Hindu

Religious Institutions and Endowments Act, 1987 or by Wakfs

falling under the Wakfs Act, 1995 executed by persons other

than those statutorily empowered to do so is prohibited. Mr.

Roshi Reddy was not competent to alienate the property in favour of

Smt. Shaik Khamrunnisa Begum - sister of this petitioner and in-

turn, Smt. Shaik Khamrunnisa Begum executed the property in

favour of this petitioner by gift deed, but not otherwise, in view of the

prohibition contained under Section 22-A(1)(c) of the Registration

Act, since the transferor of Smt. Shaik Khamrunnisa Begum was not MSM,J WP_5190_2021

an authroized person to do. Thus, the transfer of property by Mr.

Roshi Reddy in favour of this petitioner - Shaik Shamshunnisa

Begum is without any title and such transfer and further transfer is

prohibited under Section 22-A(1)(c) of the Registration Act, 1908.

28. In Paragraph No.3 of the fifth respondent counter affidavit -

Sub-Registrar, Kallur, Kurnool, it is specifically admitted that, the

list of prohibited properties are communicated by the Chief Executive

Officer, Hyderabad vide letter No.F.No.01/Prot/AP/Genl/2016 dated

16.11.2016 to the Commissioner & Inspector General of Registration

& Stamps Department, who in-turn communicated the same to the

Sub-Registrar. It also disclosed that, the land in question is a Waqf

land. Thus, the communication is only by way of letter and not

notified in the list of prohibited properties, as required under

Section 22-A of the Registration Act, 1908

29. Similar question came up for consideration before High Court

of Andhra Pradesh at Hyderabad in Pasuparthi Jayaram v. The

Government of Andhra Pradesh4, where the land belonging to a

Mutt was included by the Commissioner of Endowments in the list of

prohibited properties under Section 22-A of the Registration Act,

1908. The learned single Judge held that, the communication

addressed by the Commissioner of the Endowments Department of

the State therefore proceeds on a complete misconception and

misunderstanding of the scope of the above provision. In the event

the Religious/Charitable/Endowment/Wakf institution seeks to

assert any right over a property, prohibition as to registration of

documents relating to such property can operate only if a notification

2013 (4) ALT 541 MSM,J WP_5190_2021

is issued under Section 22-A(2) of the Act of 1908 in connection with

Section 22-A(1)(e) thereof. The Registration of a document in absence

of a notification under Section 22-A(2) of the Act, Endowments

Department cannot communicate list of properties allegedly owned

by religious institutions by way of a letter and trace power to do so to

Section 22-A(1)(c) of the Act.

30. Applying the principle to the present facts of the case, it is

evident that, no notification was issued under Sub-section (2) of

Section 22-A of the Registration Act, 1908, but taking advantage of

Section 22-A(1)(c) of the Registration Act, 1908, a letter was

addressed to the respondent. Addressing letter by Chief Executive

Officer, Hyderabad vide letter No.F.No.01/Prot/AP/Genl/2016, dated

16.11.2016, to the Commissioner and Inspector General of

Registration and Stamps Department and the Inspector General of

Registration and Stamps Department communicated the same to the

petitioner. Consequently, refusal to register the document by

Respondent No.5 on the sole ground of communicating list of

properties prohibited from registration is a serious illegality. Hence,

the order passed by the fifth respondent is hereby set-aside, while

declaring the same as illegal, arbitrary and consequently, the fifth

respondent is directed to register the document, notwithstanding the

communication sent by Chief Executive Officer, Hyderabad vide

letter No.F.No.01/Prot/AP/Genl/2016, dated 16.11.2016, to the

Commissioner and Inspector General of Registration and Stamps

Department, who in-turn communicated the same to Respondent

No.5. Mere registration would not confer title to the purchaser, but

it is only a presumptive title.

MSM,J WP_5190_2021

31. In the result, writ petition is allowed, setting-aside the order

passed by the fifth respondent, while declaring the same as illegal,

arbitrary and consequently, the fifth respondent is directed to

register the document, notwithstanding the communication sent by

Chief Executive Officer, Hyderabad vide letter

No.F.No.01/Prot/AP/Genl/2016, dated 16.11.2016, to the

Commissioner and Inspector General of Registration and Stamps

Department, who in-turn communicated the same to Respondent

No.5, making it clear that, mere registration of document will not

confer any title on the purchaser, but it is a presumptive title.

However, the purchaser will get complete title subject to establishing

the right of vendor/petitioner before Competent Court or Tribunal.

Consequently miscellaneous petitions pending, if any, shall

also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY

30.12.2021

DR/SP