K.V.Rama Devi vs The State Of Andhra Pradesh
2022 Latest Caselaw 1832 AP

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                  WRIT PETITION NO.41245 OF 2017

ORDER:

This writ petition is filed under Article 226 of the

Constitution of India, claiming the following relief:

"To issue writ of mandamus, declaring the Gazette Notification No.43-A dated 24.10.1963 published by the respondent No.2 notifying the land in an extent of Ac.1-67 ¼ cents in Sy.No.2183 of Nandyal Village fields, Nandyal Mandal, Kurnool District as Waqf property and the consequential action of the respondent No.6 in refusing to entertain the Sale Deed for registration as arbitrary illegal contrary to the provisions of the Waqf Act, 1995 and the Indian Registration Act, 1908 settled principles of legal position and violative of the fundamental and Constitutional rights guaranteed to the petitioner under Articles 14, 19, 21 and 300-A of the Constitution of India and consequently direct the respondent No.6 to entertain the Sale Deeds for registration for the land in an extent of Ac.1-67 ¼ cents in Sy.No.2183 of Nandyal Village fields, Nandyal Mandal, Kurnool District by setting aside the Gazette Notification No. 43-A dated 24.10.1963."

The brief facts of the case are that, husband of this

petitioner and one Shaik Shahajadi purchased land measuring an

extent of Ac.1-67 ¼ cents in Sy.No.2183 of Nandyal Village Fields,

Nandyal Mandal, Kurnool District, (hereinafter referred as „subject

land‟ from one S. Mahaboob Basha and Iqbal Basha through Sale

Deeds dated 26.02.1994 bearing Document Nos.819 and 820 of

1994. As per the Record of Holdings, the subject land stood in the

name of one late Hajej Pachya Sab and the same was in his

possession and enjoyment till his demise. Thereafter, one late

Shajaari Beebi w/o late Hajej Pachya Sab sold the subject land

and other extent of land in the subject survey number in favour of

one Khasim Basha Saheb Khadri Syed and Basha Syed Khadri

Syed through Sale Deeds dated 05.07.1939 and 15.09.1939 MSM,J WP.No.41245 of 2017

bearing Document Nos.1888 of 1939 and 1943 of 1939; there were

altogether 21 sale transactions in respect of the land in the subject

survey number.

It is contended that, the subject land is purely private land

and the same is in possession and enjoyment of the petitioner and

her predecessors in title, since times immemorial. The petitioner

acquired right and title over the property. The name of the

petitioner was also mutated in the revenue records as pattadar.

While so, when the petitioner approached Respondent

No.6/Sub-Registrar, Nandyal and requested him to furnish the

market value particulars, he refused to furnish the same on the

ground that the subject land is included in the list of prohibited

properties, as it is classified as "Majid Waste Land". Thereupon,

the petitioner and one Shaik Shahajadi filed W.P.No.12871 of 2013

and W.P.No.28643 of 2014 before this Court to declare that the

action of Respondent No.6 in inclusion of the subject land in the

list of prohibited properties as „Majid Waste Land‟ and

questioning action of Respondent No.6 in refusing to entertain the

sale deeds for registration. In the above writ petitions, Respondent

No.2 herein/A.P. State Waqf Board filed counter affidavit stating

that the subject land is notified as Waqf Property and the

petitioner cannot make any claim over the subject land, therefore,

the property cannot be deleted from the list of prohibited

properties.

It is contended that, W.P.No.28643 of 2014 filed by the

petitioner and one Shaik Shahajadi was disposed of on

29.01.2016. Thereafter, when the petitioner approached MSM,J WP.No.41245 of 2017

Respondent No.6 for registration of sale deeds for the subject land,

it was brought to the petitioner‟s notice that the subject land is

notified as Waqf Property and the documents cannot be

entertained for registration.

It is contended that, as per Section 3(g) of the Waqf Act,

1995, „Waqf‟ means the list of Waqf published under Section 5(2) or

contained in the register of Waqf maintained under Section 2 of the

Act. Before publication of the list under Section 5(2) of the Act, a

preliminary survey of Waqf has to be conducted by the Survey

Commissioner of Waqf or the additional or the Survey

Commissioner of Waqf following the procedure contemplated under

Section 4 of the Act and after making such enquiry as the

Commissioner considers necessary, submit his report, in respect of

Waqf existing at the date of commencement of the Act in the State

or any part thereof to the State government. On receipt of the

Survey Commissioner‟s Report under Section 4(3) of the Act, the

State Government shall forward a copy of the same to the Board as

is contemplated under Section 5(1) of the Act. Thereafter, the

Board shall examine the report forwarded to it under Section 5(1)

of the Act and publish the same in the official Gazette. A conjoint

reading of Sections 3, 4 and 5 of the Act would show that the

Survey Commissioner of Waqf is bound to issue notice to the

persons interested in the property which is included in the list of

Waqf before its inclusion, calling upon their objections as to why

the same shall not be included in the list of Waqf.

It is also contended that the subject land is purely a private

patta land and there were sale transactions in respect of the same MSM,J WP.No.41245 of 2017

since, the year 1939 and that the subject land is a patta land,

mutated in the name of the petitioner and her predecessors in title.

Whereas, the Survey Commissioner of Waqf Booard submitted his

report unilaterally, include the subject land as Waqf property

without issuing notice to anyone of the interested persons of the

subject land.

It is contended that, in B. Gowra Reddy vs. Government of

Andhra Pradesh1, this Court held that, submission of enquiry

report without putting on the interested parties on notice and

publication of Gaazette in pursuance of the same is bad in law and

such notification is liable to be set-aside. Further, the issue as to

whether the writ petition is maintainable or not is also decided

holding that, if the Gazette is published in contravention to the

provisions of the Act, a writ petition can be entertained under

Article 226 of the Constitution of India instead of relegating the

persons aggrieved, approach to the Tribunal constituted under

Section 83 of the Act.

The same issue fell for consideration in several other writ

petitions when the Sub-Registrar concerned refused to entertain

the Sale Deeds for registration basing on the Gazette published by

the Waqf Board in contravention of the procedure contemplated

under the provisions of the Act. Further, in W.P.No.107 of 1998

and batch, the Division Bench concurrently held that the Survey

Commissioner is bound to issue notice to the persons interested in

the property during the course of inquiry and if the Survey

Commissioner submitted his report without adhering to, due

2002 (3) ALT 439 MSM,J WP.No.41245 of 2017

process of law and the Gazette publication basing on the same, is

bad in law and the same are liable to be set-aside and also

consequently directed the Sub-Registrars therein to entertain the

Sale Deeds for registration. It is contended that the principle laid

down in B. Gowra Reddy vs. Government of Andhra Pradesh

(referred supra) is squarely applicable to the present facts of the

case. Therefore, the petitioner sought a relief as stated above,

based on the principle laid down in the above judgment.

No counter affidavit is filed by Respondent Nos.1 to 5.

Respondent No.6 - Sub-Registrar, Stamps & Registration,

Nandyal, alone filed counter affidavit alleging that, consequent

upon introduction of Section 22-A of the Registration Act i.e with

effect from 20.06.2007, the documents relating to transfer of

property by way of sale, agreement of sale, gift, exchange or lease

exceeding ten years in respect of immovable property, owned by

Religious and Charitable Endowment falling under the preview of

the Andhra Pradesh Charitable and Hindu Religious Institutions

and Endowment Act, 1987 or by Waqfs falling under the Waqfs

Act, 1995, executed by persons other than those statutorily

empowered to do so, is prohibited for registration.

It is further submitted that, the updated prohibited

properties list under Section 22-A(1)(c) of the Registration Act,

regarding Waqf properties was furnished by the Waqf Board

authorities through the Chief Executive Officer, A.P. State Waqf

Board vide F.No.01/Prot/AP/Genl/2016 dated 28.09.2016 and

land measuring an extent of Ac.2-23 cents in Sy.No.2183 of MSM,J WP.No.41245 of 2017

Nandyal is covered in the list, which belongs to "Asar-e-Shariff"

(Waqf Property) vide Gazette Sl.No.3383/43A dated 24.10.1963.

It is contended that, in view of the above facts, it is

submitted that, consequent to introduction of Section 22-A of the

Registration Act, the Registering Authorities are prohibited from

entertaining registration of prohibited properties. As the land of the

petitioner to an extent of Ac.1-67 ¼ cents in Sy.No.2183 of

Nandyal Village is prohibited land within the meaning of Section

22-A(1)(c) of the Registration Act, the request of the petitioner

cannot be complied with.

It is further contended that, if the petitioner‟s land is found

in the list of prohibited properties under Section 22-A of the

Registration Act, 1908, the petitioner can make an application

before appropriate authority for deletion of the subject land from

the list of prohibited properties, in view of the judgment passed by

the Full Bench of the High Court in W.A.No.232 of 2012 & batch

dated 23.12.2015. The Government constituted a Committee

under G.O.Ms.No.300 Revenue (Assn.I) Department dated

05.07.2016 in compliance of the said orders. The petitioner can

make an application before the appropriate authority constituted

under the above said G.O. for redressal of his/her grievance and

the registering authority is not a title deciding authority and bound

by the list of prohibitory properties communicated by the

competent authority under Section 22-A of the Registration Act.

Hence, Respondent No.6 - Sub-Registrar only refused to register

the document on presentation in obedience to the prohibition

contained under Section 22-A of the Registration Act and list of MSM,J WP.No.41245 of 2017

properties communicated by the Chief Executive Officer, Waqf

board. Therefore, no writ of mandamus be issued against this

petitioner, until the property is removed from the list of prohibited

properties and requested to dismiss the writ petition against

Respondent No.6 - Sub-Registrar, Nandyal.

During hearing, Sri V.R. Reddy Kovvuri, learned counsel for

the petitioner contended that a Gazette Notification can be

questioned by invoking power under Article 226 of the Constitution

of India, when the procedure prescribed under the Waqf Act, 1954

has not been followed while issuing notification and placed reliance

on the judgment of the High Court in B. Gowra Reddy vs.

Government of Andhra Pradesh (referred supra) and

S.M. Ibrahim vs. Chief Executive officer, A.P. State Waqf

Board, Hyderabad2. To substantiate his contention, learned

counsel for the petitioner has drawn attention of this Court to

Sections 4,5 & 6 which prescribes the procedure for conducting

preliminary survey of Waqf, publication of lists and disputes

regarding Waqf in the official gazette notifying the Waqf and a

notice is required to be issued to the persons interested in the

property, but no such procedure has been followed by the

respondents, while issuing Gazette Notification No.43-A dated

24.10.1963 under Section 5, in the year 1963. Therefore, by

applying the principles laid down in the above judgments, the

petitioner is competent to challenge the Gazette Notification,

though belated. Apart from that, the valuable rights of the

petitioner are being affected in view of the Gazette Notification,

2020 (4) ALD 433 (AP) (DB) MSM,J WP.No.41245 of 2017

though she is a subsequent purchaser. Therefore, the Gazette

Notification impugned is liable to be set-aside, as it is in violation

of the procedure prescribed under the Waqf Act, 1995.

Whereas, learned Standing Counsel for the Andhra Pradesh

Waqf Board would submit that, there is abnormal delay in

challenging the Gazette Notification which is not explained by this

petitioner. In fact, the vendor of this petitioner or his legal heirs

was not impleaded as parties who are competent to explain the

reasons for not taking any action in the Court of law. Therefore,

delay and latches by itself is a ground to decline the relief to this

petitioner and requested to dismiss the writ petition.

Whereas, learned Assistant Government Pleader for Stamps

and Registration would submit that, as the list of prohibited

properties under Section 22-A of the Registration Act, 1908,

communicated by the competent authority to Respondent

No.5/Tahsildar, the Tahsildar denied registration being an

authority to implement the direction in terms of Section 22-A of

the Registration Act and requested to dismiss the writ petition

against Respondent No.5.

Considering rival contentions, perusing the material

available on record, the points that arose for consideration are as

follows:

1. Whether delay and latches in challenging the Gazette Notification No.43-A dated 24.10.1963 before Respondent No.2, notifying the land admeasuring an extent of Ac.1-67 ¼ cents in Sy.No.2183 of Nandyal Village Fields, Nandyal Mandal, Kurnool District, be declared as illegal, arbitrary and violative of the MSM,J WP.No.41245 of 2017

procedure prescribed under the Waqf Act, 1954. If so, whether the Gazette Notification No.43-A dated 24.10.1963 is liable to be set-aside?

2. Whether any notice is required to be issued to the persons interested under the provisions of Waqf Act, 1954, prior to publication?"

P O I N T Nos.1 & 2:

As both the points are inter-connected, I find it expedient to

decide both the points by common discretion.

Admittedly, the writ petition is filed in the year 2017

challenging Gazette Notification No.43-A dated 24.10.1963. Thus

by the date of filing the writ petition, Gazette Notification is more

than 54 years old. Thus, it is clear that the Gazette Notification

was challenged after lapse of half century and there is any amount

of delay and latches on the part of this petitioner in approaching

the Court. According to the petitioner, the petitioner succeeded the

subject property which was purchased by her husband and one

Shaik Shahajadi under registered sale deed dated 26.02.1994 from

one S. Mahaboob Basha and Iqbal Basha. Since the subject

property is a private patta land, the same was in possession and

enjoyment of S. Mahaboob Basha and Iqbal Basha and their

predecessors in title till sale of the same to the husband of this

petitioner. Since the date of purchase, husband of this petitioner

was in continuous possession and enjoyment of the same and after

his demise, the petitioner succeeded the property. Thus, husband

of this petitioner admittedly purchased the property in the year

1994. But, the Gazette Notification was issued about 31 years prior MSM,J WP.No.41245 of 2017

to purchase of the property. The vendors of the petitioner‟s

husband or predecessors of the vendors in title did not challenge

the notification and they are not made as parties to the present

writ petition to explain as to what prevented them to challenge the

notification impugned in the writ petition. Even otherwise, the writ

petitioner and one Shaik Shahajadi filed W.P.No.12871 of 2013

and W.P.No.28643 of 2014 on the file of High Court to declare the

action of Respondent No.5 in inclusion the land admeasuring an

extent of Ac.1-67 ¼ cents in Sy.No.2183 of Nandyal Village Fields,

Nandyal Mandal, Kurnool District in the list of prohibited

properties as 'Majid Waste Land' basing on the entries in Re-

survey and Re-settlement Register and consequential action of

Respondent No.6 in refusing to entertain the sale deeds for

registration, basing on the list of prohibited properties furnished

by Respondent No.5 and consequently to set-aside the list of

prohibited properties in so far as inclusion of the land

admeasuring an extent of Ac.1-67 ¼ cents in Sy.No.2183 of

Nandyal Village Fields, Nandyal Mandal, Kurnool District,

furnished by Respondent No.5 and also to direct Respondent No.6

to entertain the sale deeds for registration basing on the list of

prohibitory properties communicated to it.

Though W.P.No.12871 of 2013 and W.P.No.28643 of 2014

were filed in the year 2013 - 2014 and got disposed of the same

vide order dated 29.01.2016, the petitioner did not challenge the

Gazette Notification, but filed this writ petition on 04.12.2017 i.e.

almost after 1 ½ year. Therefore, there is abnormal delay in

approaching the Court claiming a discretionary relief under MSM,J WP.No.41245 of 2017

Article 226 of the Constitution of India. According to Article 58 of

the Limitation Act, 1963 to claim any other declaration, the period

of limitation is three years, the time from which the limitation

begins to run is when the right to sue first accrues.

But, here, the petitioner is assailing the Gazette Notification

issued in the year 1963. If, Article 58 of the Limitation Act, 1963,

is applied, the claim of this petitioner is barred by limitation and it

cannot be applied. However, it has got its relevancy to decide the

delay and latches on the part of this petitioner, in approaching the

Court claiming discretionary relief. The delay was not explained by

this petitioner in approaching the Court at belated stage and in the

absence of any explanation for such belated approach to the Court,

it is difficult for this Court to exercise discretionary power under

Article 226 of the Constitution of India to grant any relief to the

petitioner, as delay and latches defeats the discretion.

Though, Respondent No.2/Waqf Board did not file any

counter affidavit in the writ petition, but, during argument, learned

Standing Counsel contended that, delay and latches are sufficient

to reject the claim of this petitioner and requested to dismiss the

writ petition.

In view of the specific claim of Respondent No.2/Waqf Board,

as to delay and latches, it is appropriate to advert to the law laid

down by the Hon‟ble Supreme Court that, even in the absence of

any plea by Respondent No.2/Waqf Board, the Court can examine

the question of delay and latches as the relief under Article 226 of

the Constitution of India is purely discretionary in nature, as such

delay would defeat the discretion.

MSM,J WP.No.41245 of 2017

Under Article 226 of the Constitution of India, there is no

time limit for filing a Writ Petition. However, there should be a

reasonable time to file the writ petition. Though reasonable time is

not prescribed in the rules framed under Article 226 of the

Constitution of India, the words "reasonable time'', is explained in

Veerayeeammal v. Seeniammal3. The word "reasonable" has in

law prima facie meaning of reasonable in regard to those

circumstances of which the person concerned is called upon to act

reasonably knows or ought to know as to what was reasonable. It

may be unreasonable to give an exact definition of the word

"reasonable". The reason varies in its conclusion according to

idiosyncrasy of the individual and the time and circumstances in

which he thinks. The dictionary meaning of the "reasonable time"

is to be so much time as is necessary, under the circumstances, to

do conveniently what the contract or duty requires should be done

in a particular case. In other words it means, as soon as

circumstances permit. In P. Ramanatha Aiyar"s The Law Lexicon

it is defined to mean "A reasonable time, looking at all the

circumstances of the case; a reasonable time under ordinary

circumstances; as soon as circumstances will permit; so much

time as is necessary under the circumstances, conveniently to do

what the contract requires should be done; some more protracted

space than "directly"; such length of time as may fairly, and

properly, and reasonably be allowed or required, having regard to

the nature of the act or duty and to the attending circumstances;

all these convey more or less the same idea.

2002 (1) SCC 134 MSM,J WP.No.41245 of 2017

"Latches or reasonable time are not defined under any

Statute or Rules. "Latches" or "Lashes" is an old french word for

slackness or negligence or not doing. In general sense, it means

neglect to do what in the law should have been done for an

unreasonable or unexplained length of time. What could be the

latches in one case might not constitute in another.

Statement of law has also been summarized in Halsbury's

Laws of England that, "In determining whether there has been

such delay as to amount to latches, the chief points to be

considered are: (i) acquiescence on the claimant's part; and (ii) any

change of position that has occurred on the defendant's part.

Acquiescence in this sense does not mean standing by while the

violation of a right is in progress, but assent after the violation has

been completed and the claimant has become aware of it. It is

unjust to give the claimant a remedy where, by his conduct, he has

done that which might fairly be regarded as equivalent to a waiver

of it; or where by his conduct and neglect, though not waiving the

remedy, he has put the other party in a position in which it would

not be reasonable to place him if the remedy were afterwards to be

asserted. In such cases lapse of time and delay are most material.

Upon these considerations rests the doctrine of latches.

In State of Madhya Pradesh vs. Nandlal Jaismal4, the

Hon'ble Supreme Court held that that the power of the High Court

to issue an appropriate writ under Article 226 of the Constitution

is discretionary and the High Court in the exercise of its discretion

does not ordinarily assist the tardy and the indolent or the

1986 (4) SCC 566 MSM,J WP.No.41245 of 2017

acquiescent and the lethargic. If there is inordinate delay on the

part of the petitioner in filing a writ petition and such delay is not

satisfactorily explained, the High Court may decline to intervene

and grant relief in the exercise of its writ jurisdiction. The evolution

of this rule of latches or delay is premised upon a number of

factors. The High Court does not ordinarily permit a belated resort

to the extraordinary remedy under the writ jurisdiction because it

is likely to cause confusion and public inconvenience and bring in

its train new injustices. The rights of third parties may intervene

and if the writ jurisdiction is exercised on a writ petition filed after

unreasonable delay, it may have the effect of inflicting not only

hardship and inconvenience but also injustice on third parties.

When the writ jurisdiction of the High Court is invoked,

unexplained delay coupled with the creation of third party rights in

the meanwhile is an important factor which always weighs the

High Court in deciding whether or not to exercise such

jurisdiction. Where there is inordinate and unexplained delay and

third party rights are created in the intervening period, the High

Court would decline to interfere, even if the State action

complained of is unconstitutional or illegal. This rule of latches or

delay is not a rigid rule which can be cast in a strait jacket

formula, for there may be cases where despite delay and creation

of third party rights the High Court may still in the exercise of its

discretion interfere and grant relief to the petitioner. But, such

cases where the demand of justice is so compelling that the High

Court would be inclined to interfere in spite of delay or creation of

third party rights would by their very nature be few and far MSM,J WP.No.41245 of 2017

between. Ultimately it would be a matter within the discretion of

the court; ex hypothesi every discretion must be exercised fairly

and justly so as to promote justice and not to defeat it.

In G.C.Gupta v. N.K. Pandey5, the Hon'ble Supreme Court

held that, inordinate delay is not merely a factor for the court to

refuse appropriate relief but also a relevant consideration it be so

minded not to unsettle settled things.

How a person who alleges against the State of "deprivation of

his legal right, can get relief of compensation from the State

invoking writ jurisdiction of the High Court under article 226 of the

Constitution even though, he is guilty of latches or undue delay is

difficult to comprehend, when it is well settled by decision of this

Court that no person, be he a citizen or otherwise, is entitled to

obtain the equitable relief under Article 226 of the Constitution if

his conduct is blame worthy because of latches, undue delay,

acquiescence, waiver and the like. Moreover, how a citizen claiming

discretionary relief under Article 226 of the Constitution against a

State, could be relieved of his obligation to establish his

unblameworthy conduct for getting such relief, where the State

against which relief is sought is a welfare State, is also difficult to

comprehend. Where the relief sought under Article 226 of the

Constitution by a person against the welfare State is founded on

its alleged illegal or wrongful executive action, the need to explain

latches or undue delay on his part to obtain such relief, should, if

anything, be more stringent than in other cases, for the reason

that the State due to latches or undue delay on the part of the

(1988) 1 SCC 316 MSM,J WP.No.41245 of 2017

person seeking relief, may not be able to show that the executive

action complained of was legal or correct for want of records

pertaining to the action or for the officers who were responsible for

such action not being available later on. Further, where granting of

relief is claimed against the State on alleged unwarranted executive

action, is bound to result in loss to the public exchequer of the

State or in damage to other public interest, the High Court before

granting such relief is required to satisfy itself that the delay or

latches on the part of a citizen or any other person in approaching

for relief under Article 226 of the Constitution on the alleged

violation of his legal right, was wholly justified in the facts and

circumstances, instead of ignoring the same or leniently

considering it. Thus, in our view, persons seeking relief against the

State under Article 226 of the Constitution, be they citizens or

otherwise, cannot get discretionary relief obtainable thereunder

unless they fully satisfy the High Court that the facts and

circumstances of the case clearly justified the latches or undue

delay on their part in approaching the Court for grant of such

discretionary relief. Therefore, where a High Court grants relief to a

citizen or any other person under Article 226 of the Constitution

against any person including the State without considering his

blame-worthy conduct, such as latches or undue delay,

acquiescence or waiver, the relief so granted becomes

unsustainable even if the relief was granted in respect of alleged

deprivation of his legal right by the State.

The doctrine of latches in Courts of Equity is not an

arbitrary or a technical doctrine. Where it would be practically MSM,J WP.No.41245 of 2017

unjust to give a remedy, either because the party has, by his

conduct, done that which might fairly be regarded as equivalent to

a waiver of it, or where by his conduct and neglect he has, though

perhaps not waiving that remedy, yet put the other party in a

situation, in which it would not be reasonable to place him, if the

remedy were afterwards to be asserted, in either of these cases,

lapse of time and delay are most material. But in every case, if an

argument against relief, which otherwise would be just, is founded

upon mere delay, that delay of course not amounting to a bar by

any statute or limitations, the validity of that defence must be tried

upon principles substantially equitable. Two circumstances,

always important in such cases, are, the length of the delay and

the nature of the acts done during the interval, which might affect

either party and cause a balance of Justice or injustice in taking

the one course or the other, so far as it relates to the remedy.

Therefore, where a High Court in exercise of its power vested

under Article 226 of the Constitution issues a direction, order or

writ for granting relief to a person including a citizen without

considering his disentitlement of such relief due to his

blameworthy conduct of undue delay or latches in claiming the

same, such a direction, order or writ becomes unsustainable as

that not made judiciously and reasonably in exercise of its sound

judicial discretion, but as that made arbitrarily.

In Hameed Joharan v. Abdul Salem6, the Hon'ble Supreme

court considered the enforceability of a decree, and the limitation

thereof. In the said judgment, the Hon'ble Supreme Court after

(2001) 7 SCC 573 MSM,J WP.No.41245 of 2017

taking note of the Latin maxim vigilantibus et non dormientibus

jura subveniunt, explained the use of legal diligence and as to how

lapse of time is species for forfeiture of right. In the words of

Hon'ble Supreme Court, the above principle is explained as, It

cannot but be the general policy of our law to use the legal

diligence and this has been the consistent legal theory from the

ancient times: even the doctrine of prescription in Roman law

prescribes such a concept of legal diligence and since its

incorporation therein, the doctrine has always been favoured

rather than claiming disfavour. Law courts never tolerate an

indolent litigant since delay defeats equity the Latin maxim

vigilantibus et non dormientibus jura subveniunt (the law assists

those who are vigilant and not those who are indolent). As a matter

of fact, lapse of time is a species for forfeiture of right. (vide Wood,

V.C. in Manby vs. Bewicke7

In Board of Secondary Education of Assam v. Mohd.

Sarifuz Zaman8, the Hon'ble Supreme Court has observed that,

delay defeats discretion and loss of limitation destroys the remedy

itself. Delay amounting to latches results in benefit of discretionary

power being denied on principles of equity. Loss of limitation

resulting into depriving of the remedy, is a principle based on

public policy and utility and not equity alone.

In Karnataka Power Corporation Limited., v.

K.Thangappan and Anr9, the Hon'ble Supreme Court, held that,

Delay or latches is one of the factors which is to be borne in mind

69 ER 1140 (K&J) at p.352

(2003) 12 SCC 408

2006 (4) SCC 322 MSM,J WP.No.41245 of 2017

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.

The power to condone the delay rests with the court in which

the application was filed beyond time and decide whether there is

sufficient cause for condoning the delay and ordinarily the superior

court may not interfere with such discretion even if some error is

to be found in the discretion so exercised by the court but where

there is no sufficient cause for condoning the delay but the delay

was condoned, it is a case of discretion not being exercised

judicially and the order becomes vulnerable and susceptible for its

correction by the superior court.

Latches or undue delay, the blame-worthy conduct of a

person in approaching a Court of Equity in England for obtaining

discretionary relief which disentitled for grant of such relief was

explained succinctly by Sir Barnes Peacock, long ago, in Lindsay

Petroleum Co. v. Prosper Armstrong10 that, the doctrine of

latches in Courts of Equity is not an arbitrary or a technical

doctrine. Where it would be practically unjust to give a remedy,

either because the party has, by his conduct, done that which

might fairly be regarded as equivalent to a waiver of it, or where by

his conduct and neglect he has, though perhaps not waiving that

remedy, yet put the other party in a situation, in which it would

(1874) 5 PC 221 MSM,J WP.No.41245 of 2017

not be reasonable to place him if the remedy were afterwards to be

asserted, in either of these cases, lapse of time and delay are most

material.

In the facts of New Delhi Municipal Council v. Pan Singh

and Ors11 the respondents therein filed a writ petition after 17

years. They did not agitate their grievances for a long time. They,

as noticed herein, did not claim parity with the 17 workmen at the

earliest possible opportunity. They did not implead themselves as

parties even in the reference made by the State before the

Industrial Tribunal. It is not their case that after 1982, those

employees who were employed or who were recruited after the cut-

off date have been granted the said scale of pay. After such a long

time, therefore, the writ petitions could not have been entertained

even if they are similarly situated. It is trite that the discretionary

jurisdiction may not be exercised in favour of those who approach

the court after a long time. Delay and latches are relevant factors

for exercise of equitable jurisdiction. The same principle was laid

down in by the Hon‟ble Apex Court in Government of West

Bengal vs. Tarun K. Roy12, U.P. Jal Nigam vs. Jaswant Singh13

and Karnataka Power Corporation Limited., vs.

K.Thangappan (referred supra).

It is useful to refer to the passage from City and Industrial

Development Corporation v. Dosu Aardeshir Bhiwandiwala and

(2007) 9 SCC 278

(2004) 1 SCC 347

(2006) 11 SCC 464 MSM,J WP.No.41245 of 2017

Ors14, wherein this Court while dwelling upon jurisdiction Under

Article 226 of the Constitution, has expressed thus:

"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."

In Chennai Metropolitan Water Supply and Sewerage

Board and Ors. v. T.T. Murali Babu15, it was held that, the

doctrine of delay and latches 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

latches may not be fatal but in most circumstances, inordinate

2009) 1 SCC 168

(2014) 4 SCC 108 MSM,J WP.No.41245 of 2017

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.

In Tukaram Kana Joshi and Ors. v. Maharashtra

Industrial Development Corporation & Ors16 it has been ruled

that, delay and laches is adopted as a mode of discretion to decline

exercise of jurisdiction to grant relief. There is another facet. The

Court is required to exercise judicial discretion. The said discretion

is dependent on facts and circumstances of the cases. Delay and

laches is one of the facets to deny exercise of discretion. It is not an

absolute impediment. There can be mitigating factors, continuity of

cause action, etc. That apart, if the whole thing shocks the judicial

conscience, then the Court should exercise the discretion more so,

when no third-party interest is involved. Thus analysed, the

petition is not hit by the doctrine of delay and latches as the same

is not a constitutional limitation, the cause of action is continuous

and further the situation certainly shocks judicial conscience.

Further, it was held that, no hard-and-fast rule can be laid down

as to when the High Court should refuse to exercise its jurisdiction

in favour of a party who moves it after considerable delay and is

otherwise guilty of latches. Discretion must be exercised

judiciously and reasonably. In the event that the claim made by

the applicant is legally sustainable, delay should be condoned. In

(2013) 1 SCC 353 MSM,J WP.No.41245 of 2017

other words, where circumstances justifying the conduct exist, the

illegality which is manifest, cannot be sustained on the sole ground

of latches. When substantial justice and technical considerations

are pitted against each other, the cause of substantial justice

deserves to be preferred, for the other side cannot claim to have a

vested right in the injustice being done, because of a non-

deliberate delay. The court should not harm innocent parties if

their rights have in fact emerged by delay on the part of the

petitioners.

Similar issue came up for consideration before the Apex

Court in Londhe Prakash Bhagwan v. Dattatraya Eknath Mane

and others17, wherein the Apex Court while deciding a service

dispute highlighted the jurisdiction of the High Court to exercise

power when the parties approached the Court at belated stage

observed as follows:

"In all these cases, the aggrieved person shall have a right to approach the Tribunal. Now, the sole question which falls for our consideration is: when an aggrieved person can apply before the Court, if no limitation is prescribed in the statute for filing an appeal before the appropriate forum. We have duly considered the said question. Even if we assume that no limitation is prescribed in any statute to file an application before the court in that case, can an aggrieved person come before the court at his sweet will at any point of time ? The answer must be in the negative. If no time-limit has been prescribed in a statute to apply before the appropriate forum, in that case, he has to come before the court within a reasonable time. This Court on a number of occasions, while dealing with the matter of similar nature held that where even no limitation has been prescribed, the petition must be filed within a reasonable time. In our considered opinion, the period of 9 years and 11 months, is nothing but an inordinate delay to pursue the remedy of a person and without submitting any cogent reason therefor. The court has no power to condone the same in such case."

17 (2013) 10 Supreme Court Cases 627 MSM,J WP.No.41245 of 2017

(vide Cicily Kallarackal v. Vehicle Factory18, State of Orissa v.

Mamata Mohanty19 and K.R. Mudgal v. R.P. Singh20). In all the

judgments, it has been held that the application should be rejected

on the ground of inordinate delay.

The consistent view of the Apex Court in various judgments

referred above was that, for abnormal delay, which is unexplained

disentitles the petitioners to claim such discretionary relief under

Article 226 of the Constitution of India.

Holding that laws of limitation are founded on public policy,

the Hon'ble Supreme Court noted Halsburys Laws of England, at

paragraph 26 and held as follows:

26. Basically, the laws of limitation are founded on public policy. In Halsburys Laws of England, 4th Edn., Vol. 28, p. 266, Para 605, the policy of the Limitation Acts is laid down as follows:

605. Policy of the Limitation Acts.

The courts have expressed at least three differing reasons supporting the existence of statutes of limitation, namely,

(1) that long dormant claims have more of cruelty than justice in them,

(2) that a defendant might have lost the evidence to disprove the stale claim, and

(3) that persons with good causes of actions should pursue them with reasonable diligence.

(vi)Again, while referring to statutes of limitation, the Hon'ble Supreme Court described them as statutes of peace. For the purpose of understanding the rationale behind fixing time limit, under the statutes and also as to how the courts have to exercise their jurisdiction of condonation of delay. Though the Hon'ble Apex

2012 (8) SCC 524

2011 (3) SCC 436

1986 (4) SCC 531 MSM,J WP.No.41245 of 2017

Court referred to the statutory limitation, yet the principles are applicable to writ jurisdiction also, for the reason that delay defeats equity, due to negligence or latches on the part of the parties.

27. Statutes of limitation are sometimes described as statutes of peace. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This Court in Rajender Singh v. Santa Singh, reported in 1973 (2) SCC 705, has observed:

(SCC p. 712, para 18) 18. The object of law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a partys own inaction, negligence or latches.

28. In Tilokchand Motichand v. H.B. Munshi, reported in 1969 (1) SCC 110, this Court observed that this principle is based on the maxim interest reipublicae ut sit finis litium, that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression.

29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare.

They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

The reason for denial to exercise discretion or equity quality

in favour of the writ petitioner in the writ petition is that, when the

government departments took an action based on an enquiry or

otherwise, such action must be in writing. As per rules of different

departments, the files relating to those matters or enquiries will be

destroyed after some time, chances of verifying the records and

producing the records before the Court after lapse of such long MSM,J WP.No.41245 of 2017

time are bleak. That is the reason for not exercising discretion in

favour of the persons who are indolent based on the principle of

delay and latches. It is highly impossible for those departments to

prove their positive case in those circumstances. Therefore, the

Courts deny the relief on the ground of delay and latches, as delay

defeats discretion and equality.

When the relief of declaration is barred by limitation under

the statute governing the limitation, filing of a writ petition on

different ground is impermissible to declare such Gazette

Notification as illegal, when once a person who approached the

Court after such long delay of 50 years be non-suited in the

present case.

The main grievance of the petitioner before this Court is that,

the husband of this petitioner and one Shaik Shahajadi purchased

land of an extent of Ac.1-67 ¼ cents in Sy.No.2183 of Nandyal

Village Fields, Nandyal Mandal, Kurnool District, from one

S. Mahaboob Basha and Iqbal Basha through Sale Deeds dated

26.02.1994 bearing Document Nos.819 and 820 of 1994. As per

the Record of Holdings, the subject land stood in the name of one

late Hajej Pachya Sab and the same was in his possession and

enjoyment till his demise. Thereafter, one late Shajaari Beebi w/o

late Hajej Pachya Sab sold the subject land and other extent of

land in the subject survey number in favour of one Khasim Basha

Saheb Khadri Syed and Basha Syed Khadri Syed through Sale

Deeds dated 05.07.1939 and 15.09.1939 bearing Document

Nos.1888 of 1939 and 1943 of 1939; there were altogether 21 sale

transactions in respect of the land in the subject survey number.

MSM,J WP.No.41245 of 2017

Thereafter, there were some disputes regarding registration of

document presented for registration by the petitioner. Thereupon,

the petitioner and one Shaik Shahajadi filed W.P.No.12871 of 2013

and W.P.No.28643 of 2014 and those writ petitions were disposed

of directing to take appropriate action. But, the property was

classified as „Majid Waste Land‟. Even then, no steps were taken

by the petitioner or her husband or his predecessors in title to

challenge the Gazette Notification issued under Section 5(2) of the

Waqf Act, 1954.

Sri V.R. Reddy Kovvuri, learned counsel for the petitioner

mainly based his contention on the ground of non-compliance of

the procedure prescribed under Section 4(3) of the Waqf Act, 1995,

i.e. conducting an enquiry before conducting survey to issue

notices to the concerned persons who are claiming interest in the

property. As per Section 4(3) of the Waqf Act, 1995, the Survey

Commissioner shall, after making such inquiry as he may consider

necessary, submit his report, in respect of Auqaf existing at the

date of the commencement of the Act in the State or any part

thereof, to the State Government containing the particulars

therein. Section 4(4) of the Waqf Act, 1995 conferred power on the

Survey Commissioner like Civil Court under the Code of Civil

Procedure, 1908, more particularly, summoning and examining

any witness, requiring the discovery and production of any

document, requisitioning any public record from any court or

office, issuing commissions for the examination of any witness or

accounts, making any local inspection or local investigation and

such other matters as may be prescribed.

MSM,J WP.No.41245 of 2017

According to the learned counsel for the petitioner, no

enquiry, as contemplated under Section 4(3) of the Waqf Act, 1995,

corresponding to Section 4(3) of the Waqf Act, 1954 has not been

complied with, thereby, the Gazette Notification issued based on

the report of the Survey Commissioner is vitiated by an irregularity

and requested to set-aside the same.

Learned counsel for the petitioner placed reliance on the

judgment of High Court in down in B. Gowra Reddy vs.

Government of Andhra Pradesh (referred supra), where the

learned single Judge, after elaborate consideration of various

judgments regarding jurisdiction of the civil court and High Court,

held that, the Court can exercise jurisdiction. The learned single

Judge also extracted Sections 4 to 6 of the Waqf Act, 1995 in

Paragraph No.11 of the judgment and concluded in Paragraph

Nos.26 & 27 as follows:

'26. A survey of various referred to above would lead to two issues, which have to be considered by this Court, viz., whether there was a contravention of the provisions of Sections 4 to 6 of the Act and whether the Writ Petitions are maintainable under Article 226 of Constitution of India.

27. It is not in dispute that the petitioners have challenged the validity of the Gazette notification dated 9-2-1989. It is their case that there is a violation of provisions contained under Section 4 of the Act inasmuch no enquiry was conducted by the Survey Commissioner as required under Section 4 of the Act. In such an event, it is the case of the petitioners that no suit need be filed as the validity of the notification itself is in challenge. The Supreme Court has not ruled out the filing of Writ Petition in all the cases where the notifications were issued. In BOARD OF MULSIM WAKFS case (7 supra), as already noted above, the Supreme Court held when an enquiry was conducted and in consequence of such an enquiry, a notification was issued and in such an event, the challenge cannot be made under Article 226 of the Constitution of India except on the question of jurisdiction. But, with regard to the procedure, which ought to have been followed, the MSM,J WP.No.41245 of 2017

Supreme Court did not stipulate any yardstick for challenging such a notification. It is no doubt true that when a competent authority has decided the issue under the provisions of the Act, it is only to be challenged under the provisions of the Act and resort cannot be taken to Article 226 of the Constitution of India. But, however, in case when the order passed is wholly without jurisdiction or the authority lacks the competence or there is infraction of statutory provisions, it cannot be said that the Writ Petition is not available to the aggrieved party. In the instant cases, it has to be seen whether the notification issued under Section 5 of the Act was preceded by the statutory compliance as stipulated under Section 4 of the Act."

Finally, it was concluded that, when there is a contravention

of procedure while publishing the list of Waqf under Section 5 of

the Waqf Act, 1995, this Court can exercise jurisdiction under

Article 226 of the Constitution of India.

Learned counsel for the petitioner also placed reliance on

another judgment of the Division Bench of this Court (to which I

am also one of the Members) in S.M. Ibrahim vs. Chief Executive

officer, A.P. State Waqf Board, Hyderabad (referred supra),

where the Court while placing reliance on B. Gowra Reddy vs.

Government of Andhra Pradesh (referred supra), held as follows:

29. The learned Single Judge also considered the scope of Section 4 of The Act, 1995, Section 12 (2) of The Act and concluded with use of the word or in sub-section 2 of Section 112 is only to cover all actions. The said word does not in any way deal with which language or the action will be safe, notwithstanding repeal of The Act, 1954. Wakf Commissioner enquiry prepared under Section 4(4) of The Act cannot be the basis for issuance of gazette notification and thereby the High Court under Article 226 of The Constitution of India can entertain writ petition and decide the issue as to the validity of the notification. The learned Single Judge after elaborate consideration of the entire law on the issue, arrived to such conclusion. Therefore, in view of the law declared by the two judgments of Division Bench and learned Single Judge of this Court, the writ petition is maintainable, questioning the errata notification as no notice was issued, undisputedly. In such case, it is difficult to accept the contention of the respondents that this Court lacks jurisdiction in view of the bar under Sections 6, 7, 83 and 85 of The Act.

30..................

MSM,J WP.No.41245 of 2017

31. In any view of the matter, even according to the above referred judgments, when a dispute is raised with regard to the procedure followed in issuing errata notification, a notice is required to be issued and when no notice was issued, the errata notification is invalid and illegal. In view of the law declared by the Apex Court, the High Court can entertain writ petition, since the petitioner has no knowledge about the issuance of such errata notification till the date of filing writ petition before this Court and at the same time, the limitation to file a suit under Section 7 of The Act before the Tribunal is only one year from the date of notification. When no notice was issued before registering the property as wakf property and publishing the same in the official gazette in utter violation of the principles of natural justice, the writ petition can be entertained under Article 226 of The Constitution of India, following the law declared by the Division Bench of this Court referred above in B. Gowra Reddy (4th cited supra) and the learned Single Judge of this Court.

32.As discussed above, the respondents did not issue any notice before issuance of errata notification and the said fact is also admitted in para No.3 of the counter, wherein it is specifically pleaded that S.M Ibrahim filed O.S No.274 of 1983 on the file of IV Additional District Munsiff, Kadapa, challenging the errata notification and the suit was dismissed. The appeal preferred against the judgment vide A.S No.40 of 1991 before the I Additional District Judge, Kadapa was allowed with a specific observation that the Wakf Board is at liberty to take up fresh enquiry in accordance with the provisions of The Act in respect of wakf properties covered in Sy.No.18/1, giving an opportunity to the present petitioner i.e. S.M Ibrahim. The second appeal preferred in S.A No.605 of 1993 by the Wakf Board before the High Court was dismissed on 04.02.2002, in the light of the observations made by the first appellate court, the Wakf Board is at liberty to conduct an enquiry and to take up action as per the statutory provisions. This admission is sufficient to conclude that they are aware about claim of the petitioner's ancestors over the property, but failed to issue notice before conducting enquiry under Section 4 of The Act, affording reasonable opportunity to the petitioner before registering the property as wakf by publication in the gazette, even according to the judgment of the Division Bench referred supra, a notice is required to be given to the persons interested or claiming. In the present facts of the case, S.M. Ibrahim/plaintiff in O.S No.274 of 1983, challenged the errata notification in the suit, but the suit was dismissed. However, the appeal filed against judgment in the suit and second appeal, both were allowed declaring the notification as illegal. In such case, before issuing notification and registering the property as wakf, an opportunity shall be given at least to the petitioner in compliance or adhering to the principles of natural justice. Despite, the observation made by the first appellate court in A.S No.40 of 1991 on the file of I Additional District Judge, Kadapa directing to conduct fresh enquiry in accordance with the provisions of The Act, giving an opportunity to the persons who filed the suit. The person who filed the suit was S.M Ibrahim/petitioner herein, but no notice as directed by the court in A.S No.40 of 1991 was issued before issuing gazette notification. Hence, the errata notification dated 26.04.2008 issued by Wakf Board which is impugned in this writ petition is contrary to the direction and in violation of principles of the natural justice. As stated above, by applying the principles laid down in Golusu Ramulu (5th cited supra), we hold that the errata notification dated 26.04.2008 issued was without adhering to the direction issued by the I Additional District Judge, Kadapa in A.S No.40 of 1991 and in violation of principles of natural justice same is liable to be set aside, giving liberty to the 2nd respondent to conduct enquiry after MSM,J WP.No.41245 of 2017

affording an opportunity to the petitioner and take appropriate action.

There is no quarrel with regard to the law laid down by the

Court S.M. Ibrahim vs. Chief Executive officer, A.P. State Waqf

Board, Hyderabad (referred supra), and B. Gowra Reddy vs.

Government of Andhra Pradesh (referred supra).

In S.M. Ibrahim vs. Chief Executive officer, A.P. State Waqf

Board, Hyderabad (referred supra), writ petition was filed in the

year 2011 to call for records pertaining to errata notification dated

26.04.2008 published in A.P. Gazette Notification No.20 Part-II

dated 15.05.2008 issued by the Chief Executive Officer, A.P State

Waqf Board within three years from the date of issue of Gazette

Notification. The Division Bench of the Court did not consider the

effect of delay and latches in S.M. Ibrahim vs. Chief Executive

officer, A.P. State Waqf Board, Hyderabad (referred supra),

since the writ petition was filed within reasonable time. In the

present case, the writ petition was filed almost after 50 years from

the date of issue of Gazette Notification and possibility of

maintaining the entire record with regard to conduct of enquiry as

mandated under Section 4(3) & (4) of the Waqf Act, 1995, is not

possible and the record(s) would be destroyed in normal course of

events after expiry of the period prescribed by the State in

particular department. When the petitioner raised specific plea of

non-compliance of the procedure, the initial onus of proof is on the

petitioner who asserted a fact, but no material is placed on record

prima facie to conclude non-compliance and call upon the MSM,J WP.No.41245 of 2017

respondents to produce such compliance of procedure, since onus

of proof lies to respondents.

Respondent No.2/Waqf Board, though contesting the matter,

not even filed counter affidavit, obviously for different reasons.

Failure of the Waqf Board to file counter affidavit would not enure

any benefit to this petitioner to claim benefit in the writ petition.

However, as discussed in the earlier paragraphs, delay defeats the

discretion and equity. Even assuming that the Gazette Notification

is illegal and contrary to law, still the relief can be denied on the

ground of delay and latches, as held in State of Rajasthan v.

D.R.Laxmi21, where the Apex Court observed that though the

order may be void, if the party does not approach the Court within

a reasonable time, which is always a question of fact and have the

order invalidated or acquiesced or waived, the discretion of the

Court has to be exercised in a reasonable manner. If the principle

laid down in the above judgment is applied to the present facts of

the case, when the petitioner approached this Court almost after

half a century, it is difficult to exercise such a discretion in favour

of this petitioner. Hence, by applying the Doctrine of Delay and

Latches, the claim of this petitioner is liable to be rejected.

Assuming for a moment that the respondents violated the

procedure, still, the Court is not under obligation to exercise

discretion to grant relief to the petitioner due to long lapse of time

from the date of notification, in view of the law laid down by the

Apex Court in catena of perspective pronouncements referred

supra.

1996 (6) SCC 445 MSM,J WP.No.41245 of 2017

In view of my foregoing discussion, I am of the view that, it is

impossible for the respondents to produce any record to

substantiate the respondents‟ case about compliance of the

procedure under Section 4 of Waqf Act, 1995, after 50 years,

thereby, this Court cannot exercise discretion in favour of this

petitioner, as such, abnormal delay defeats the discretion and

equity.

Even if the Gazette Notification is contrary to the procedure

prescribed under the law then existed (i.e Waqf Act, 1954), on

account of passage of more than 50 years of period, the property

was classified as „Majid Waste Land‟ is maintained by the A.P.

Waqf Board and the Waqf Board treated the property of its own.

Such settled rights of the parties cannot be disturbed after long

lapse of 50 years, exercising unfettered discretion that conferred

on the Court. If, such discretion is exercised in favour of this

petitioner, it would amount to unsettling the rights of the parties

which were already settled due to passage of time. Therefore, I find

no ground to grant relief in favour of this petitioner in the present

facts of the case, notwithstanding the alleged irregularity pleaded

by the petitioner, issuing Gazette Notification under Section 5(2) of

the Waqf Act, 1954.

Since the property is classified as „Majid Waste Land‟ and

communication was sent to Respondent No.6/Sub-Registrar,

Nandyal, Respondent No.6/Sub-Registrar, Nandyal is under

obligation to refuse registration of the document, as there is a

prohibition under Section 22-A of the Registration Act, read with

Section 5(3) of the Waqf Act, 1995, which obligates the revenue MSM,J WP.No.41245 of 2017

authorities to (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. Consequently, writ petition

is liable to be dismissed. Accordingly, Point Nos. 1 & 2 are

answered against this petitioner and in favour of the respondents.

In the result, writ petition is dismissed. No costs.

Consequently, miscellaneous applications pending if any,

shall also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:19.04.2022

SP