Andhra Pradesh High Court - Amravati

Chenna Sudhakar vs The State Of Andhra Pradesh on 29 September, 2021

          THE HON'BLE SRI JUSTICE A.V.SESHA SAI

              WRIT PETITION No.2345 OF 2021


     ORDER:

The issue in the present Writ Petition arises under the Wakf

Act, 1995. Challenge in the present Writ Petition is to the Gazette

Notification, issued by the Andhra Pradesh State Wakf Board,

bearing No.43-A dated 24.10.1963, to the extent of the land

admeasuring Acs.8.20 cents in Sy.No.357 of Gotur Village Fields,

Valluru Mandal, Y.S.R. Kadapa District. The petitioners herein are

the sons of one Late Chenna Munaiah and are the residents of

Akshanthala Obayya Palli, Hamlet of Vallur Village and Mandal,

Y.S.R.Kadapa District.

2. According to the pleadings available on record, the

subject property originally belonged to one Late Sri Devara Chetty

Veeraiah, who leased out the same in favour of one Sri Shaik

Khadar Saheb by way of a registered lease deed dated 17.07.1935.

It is further pleaded that on the basis of the longstanding

possession, the sons of Late Shaik Khadar Saheb, viz., S/Sri Shaik

Hussain Saheb and Naaguru Saheb, sold the subject land in favour

of one Sri Lebaka Chinna Naga Subbaiah, vide registered sale deed

bearing Doc.No.2328 of 1952 dated 26.05.1952. It is the further

case of the petitioners herein that subsequently, the Inam Deputy

Tahsildar, Kadapa, granted patta in favour of Lebaka Chinna Naga

Subbaiah for the subject land and the revenue records also

underwent mutations in favour of the said individual. It is also

averred that the said Lebaka Chinna Naga Subbaiah sold the

property in favour of one Sri Pottipati Yerikalamma, wife of Pottipati

Subbaiah, and Pottipati Nagi Reddy, son of Pottipati Subbaiah, vide

registered sale deed bearing Doc.No.2431 of 1975. According to the

pleadings, the said Pottipati Nagi Reddy, who was the only son of

Pottipati Yerikalamma and Pottipati Subbaiah, was unmarried and

died and the said Yerikalamma and Subbaiay, thereafter, adopted

the father of the petitioners, viz., Late Chenna Munaiah and

thereafter the property continued to be in possession and

enjoyment of the petitioners' grand-mother till her demise and, in

whose favour, there was also a mutation affected in the revenue

record and the revenue authorities also issued pattedar passbooks

and title deeds. It is further pleaded that the said Pottipati

Yerikalamma executed a Will dated 05.06.2009, registered as

Document No.1958 of 2009, and after the death of Smt. Pottipati

Yerikalamma, the subject property came into possession of the

father of the petitioners, Late Sri Chenna Munaiah. It is also the

case of the petitioners herein that having recognized their

possession and enjoyment over the subject lands, necessary

mutation was also affected in favour of the father of the petitioners

herein and the revenue authorities also issued pattedar passbooks

and title deeds in favour of the father of the petitioners. It is

further stated that subsequently after the demise of the father of

the petitioners, the petitioners herein succeeded to the subject

property and since then, they have been in possession and

enjoyment of the property without there being any interference

from anybody. It is also pleaded that in due recognition of their

possession and enjoyment over the subject lands, necessary

mutations have been affected in the revenue records and the

revenue authorities also issued pattedar passbooks and title deeds

in favour of the petitioners herein. In fact, copies of the pattedar

passbooks and 1B Adangal copies are also filed along with the Writ

Petition as material papers.

3. In the year 2018, complaining of illegal interference by

respondent No.4, the petitioners herein filed Writ Petition No.3120

of 2018 before this Court, wherein the petitioners herein also

questioned the action of respondent No.4 in erecting the caution

board. It is also stated in the writ affidavit that this Court on

31.08.2018, passed an order, directing the respondents therein not

to dispossess the petitioners therein without following due process

of law.

4. The grievance of the petitioners in the present Writ

Petition precisely is that despite all these aspects, when the

petitioners herein approached respondent No.5 for presentation of

the documents for registration with an intention to sell the

property, respondent No.5 herein brought to their notice about the

notification issued by the Wakf Board, which is impugned in the

present Writ Petition.

5. The essence of the case of the petitioners, as advocated

by the learned counsel for the petitioners, Sri V.R.Reddy Kovvuri, is

that till the document was presented before respondent No.5 for

registration, the petitioners herein had no knowledge of the Gazette

Notification and it is contended by the learned counsel for the

petitioners that while issuing the impugned Gazette Notification,

the respondent-Wakf Board failed to adhere to the mandatory

provisions of Sections 3, 4 and 5 of the Wakf Act, 1995. It is the

further submission of the learned counsel, in elaboration, that

without any notice to the affected parties, the subject Notification

came to be issued by the Wakf Board.

In support of his submissions and contentions, learned

counsel for the petitioners places reliance on the following

judgments:

(1) B.Gowra Reddy (deceased by L.Rs.) and others Vs. Government of Andhra Pradesh and others1. (2) Syed Amanullah Hussaini and others Vs. State of Andhra Pradesh, rep. by its Secretary to Government and others2.

(3) M/s. Bhagyanagar Investments & Training Private Ltd., and others Vs. The Sub-Registrar, Champapet, R.R.District and another3.

(4) P.Yadagiri Reddy Vs. The Sub Registrar, Maheswaram, Ranga Reddy District and another4.

(5) M/s. Solithro Private Limited Vs. The State of Andhra Pradesh and others5.

AIR 2002 AP 313

Decided on 22.03.2007 in W.P.No.107 of 1998

Decided on 06.02.2012 in W.P.No.9378 of 2009

Decided on 16.11.2009 in W.P.No.19977 of 2009

Decided on 22.09.2016 in W.P.No.33133 of 2014

(6) S.M.Ibrahim Vs. Chief Executive Officer, A.P.State Wakf Board, Hyderabad and another6.

6. On the contrary, learned Government Pleader for

Revenue, Sri G.L.Nageswara Rao, and the learned Standing

Counsel for the Andhra Pradesh Wakf Board, Sri Shaik Karimulla,

strenuously contend that the very Writ Petition filed by the

petitioners herein is not maintainable and having failed to avail the

statutory remedy available under Section 6 of the Wakf Board,

1995, it is not open for the petitioners herein to approach this

Court under Article 226 of the Constitution of India.

7. In the above background, now, the issue that emerges

for consideration of this Court in the present Writ Petition is,

"Whether the questioned notification to the extent of the lands of

the petitioners herein is sustainable and tenable?

8. The provisions of law which are relevant and germane

for the purpose of adjudicating the issue in the present Writ

Petition are Sections 4, 5 and 6 of the Wakf Act, 1995 and the same

read as under:

4. Preliminary survey of 4[auqaf].-- (1) The State Government may, by notification in the Official Gazette, appoint for the State a Survey Commissioner of 5[Auqaf] and as many Additional or Assistant Survey Commissioners of 5[Auqaf] as may be necessary for the purpose of making a survey of 6[auqaf in the State].

2020(4) ALD 433 (AP) (DB)

7[(1A) Every State Government shall maintain a list of auqaf referred to in sub-section (1) and the survey of auqaf shall be completed within a period of one year from the date of commencement of the Wakf (Amendment) Act, 2013 (27 of 2013), in case such survey was not done before the commencement of the Wakf (Amendment) Act, 2013:

Provided that where no Survey Commissioner of Waqf has been appointed, a Survey Commissioner for auqaf shall be appointed within three months from the date of such commencement.] (2) All Additional and Assistant Survey Commissioner of 5[Auqaf] shall perform their functions under this Act under the general supervision and control of the Survey Commissioner of 5[Auqaf].

(3) The Survey Commissioner shall, after making such inquiry as he may consider necessary, submit his report, in respect of 8[auqaf] existing at the date of the commencement of this Act in the State or any part thereof, to the State Government containing the following particulars, namely:--

(a) the number of 1[auqaf] in the State showing the Shia 1[auqaf] and Sunni 1[auqaf] separately;

(b) the nature and objects of each 2[waqf];

(d) the amount of land revenue, cesses, rates and taxes payable in respect of each 2[waqf];

(e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each 2[waqf]; and

(f) such other particulars relating to each 2[waqf] as may be prescribed.

(4) The Survey Commissioner shall, while making any inquiry, have the same powers as are vested in a

civil court under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely:--

(a) summoning and examining any witness;

(b) requiring the discovery and production of any document;

(d) issuing commissions for the examination of any witness or accounts;

(e) making any local inspection or local investigation;

(f) such other matters as may be prescribed.

(5) If, during any such inquiry, any dispute arises as to whether a particular 2[waqf) is a Shia 2[waqf] or Sunni 2[waqf] and there are clear indications in the deed of 2[waqf] as to its nature, the dispute shall be decided on the basis of such deed.

(6) The State Government may, by notification in the Official Gazette, direct the Survey Commissioner to make a second or subsequent survey of 2[waqf]

properties in the State and the provisions of sub-sections (2), (3), (4) and (5) shall apply to such survey as they apply to a survey directed under sub-section (1):

Provided that no such second or subsequent survey shall be made until the expiry of a period of 3[ten years] from the date on which the report in relation to the immediately previous survey was submitted under sub-section (3):

4[Provided further that the waqf properties already notified shall not be reviewed again in subsequent survey except where the status of such property has been changed in accordance with the provisions of any law.]

5. Publication of list of 5[auqaf].--(1) On receipt of a report under sub-section (3) of section 4, the State

Government shall forward a copy of the same to the Board.

(2) The Board shall examine the report forwarded to it under sub-section (1) and 6[fordward it back to the Government within a period of six months for publication in the Official Gazette] a list of Sunni 1[auqaf] or Shia 1[auqaf] in the State, whether in existence at the commencement of this Act or coming into existence thereafter, to which the report relates, and containing such other particulars as may be prescribed. 1[(3) The revenue authorities shall--

(i) include the list of auqaf referred to in sub-section (2), while updating the land records; and

(ii) take into consideration the list of auqaf referred to in sub-section (2), while deciding mutation in the land records.

(4) The State Government shall maintain a record of the lists published under sub-section (2) from time to time.]

6. Disputes regarding 2[auqaf].--(1) If any question arises whether a particular property specified as 3[waqf] property in the list of 4[auqaf] is 3[waqf] property or not or whether a 3[waqf] specified in such list is a Shia 3[waqf] or Sunni 3[waqf], the Board or the mutawalli of the 3[waqf] or 5[any person aggrieved] 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 4[auqaf]:

6[Provided further that no suit shall be instituted before the Tribunal in respect of such properties notified in a second or subsequent survey pursuant to the provisions contained in sub-section (6) of section 4.]

7[* * * * *] (2) Notwithstanding anything contained in sub- section (1), no proceeding under this Act in respect of any 3[waqf] 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 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 1[auqaf] shall, unless it is modified in pursuance of a decision of 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).

9. While dealing with similarly situated circumstances

under the above provisions of law, the composite High Court did set

aside the notifications impugned in the respective cases.

10. In S.M.Ibrahim's case (6 supra), a Division Bench of this

Court had an occasion to deal with a Gazette Notification dated

26.03.1964 and after elaborately considering the earlier judgments,

the Division Bench at paragraph Nos.34 and 35 held as follows:

"34. In view of our foregoing discussion, we find that the errata notification dated 26.04.2008 impugned in this writ petition is hereby set aside with a liberty to conduct necessary enquiry affording an opportunity to this petitioner before registering the property in Sy.No.18/1 of

an extent of Ac.3.70 cents of Nagarajupalli village as wakf by issuing notification and decide the objections if any, raised by the petitioner, on receipt of notice during the enquiry.

35. In the result, the writ petition is allowed, setting aside the errata notification dated 26.04.2008 published in A.P Gazette No.20 Part II, dated 15.05.2008, by declaring the same as illegal. However, liberty is 24 HACJ & MSM, J W.P No.25219 of 2011 granted to the Wakf Board i.e. respondent Nos.1 and 2 herein, to conduct necessary enquiry under Section 4 of The Act, 1995 and take appropriate action under Section 5 of The Act if necessary, before registering the property in dispute as wakf and the observations made hereinabove with regard to the title to the property will have no bearing. The Enquiry Officer appointed under Section 4 of The Act, is directed to dispose of the objections, if any, filed by this petitioner, uninfluenced by the observations or findings if any, recorded hereinabove."

11. The situation in the present case also is substantially

similar to the facts and circumstances in the cases referred to

supra. In fact, in the above referred judgments, the composite High

Court and this Court after extensively considering the above

referred relevant provisions of the Wakf Act, 1995, arrived at the

conclusions and eventually set aside the notification impugned

therein.

12. For the aforesaid reasons and in view of the law laid

down in the judgments referred to supra, the Notification bearing

No.43-A dated 24.10.1963 to the extent of the subject lands,

admeasuring Acs.8.20 cents in Sy.No.357 of Gotur Village Fields,

Valluru Mandal, Y.S.R. Kadapa District, stands set aside. However,