Andhra Pradesh High Court - Amravati
Sri Kondedi Chinna Satyambuli Satyam vs District Collector And District ... on 23 August, 2024
* HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE SRI JUSTICE NYAPATHY VIJAY
C.R.P.Nos.7336, 5442, 6717, 6719, 6725, 6732, 6755, 6766,
6783, 7332 and 7399 of 2018
% 23.08.2024
CRP.No.7336 of 2018
# Sri Vanka Thrimurthulu
... Petitioner
Vs.
$ District Collector And District Magistrate And 2
Others
... Respondent
! Counsel for the petitioners: Sri Chavali Ramanand
! Counsel for the Respondent : Sri P.Veera Reddy for Sri Shaik
Arifulla (S.C. for Wakf Board)
< Gist:
> Head Note:
? Cases referred:
1
2001(8) SCC 528
2
2017 (13) SCC 174
3 2022 Livelaw (SC)136
4
(2008) 9 SCC 306
5
(1982) 2 SCC 134
6
1995 Supp (2) SCC 290
7
2019 (20) SCC 705
81998 (8) SCC 483
2
APHC010928452018
IN THE HIGH COURT OF ANDHRA
PRADESH
[3460]
AT AMARAVATI
(Special Original Jurisdiction)
FRIDAY ,THE TWENTY THIRD DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL REVISION PETITION NO: 7336/2018 & 10 others
Between:
Sri Vanka Thrimurthulu ...PETITIONER
AND
District Collector And District Magistrate And
2 Others
...RESPONDENT(S)
Counsel for the Petitioner:
1. CHAVALI RAMANAND
Counsel for the Respondent(S):
1.
2. S ARIFULLAH (SC FOR AP WAQF BOARD)
The Court made the following:
3
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
C.R.P.Nos.7336, 5442, 6717, 6719, 6725, 6732, 6755, 6766,
6783, 7332 and 7399 of 2018
COMMON ORDER:
Introduction: The genesis for the present batch of
revisions is the order passed by the District Collector, East
Godavari District (as it then was) under Section 52(2) of the
A.P. Wakf Act, 1995 (for short 'the Act') vide proceedings
No.REV-HSECOMIS/1/2017, dated 13.03.2017 directing the
Tahsildar, Mummidivaram to hand over lands specified therein
in the possession of these petitioners to the Inspector Auditor,
Wakfs, East Godavari District within 30 days.
2. This order of eviction was challenged before the A.P.
State Wakf Tribunal, City Civil Court Campus at Hyderabad in
Appeal filed under Section 52 (4) of the Act. The Wakf Tribunal
passed orders dismissing the appeals and hence, the present
revisions were filed under Section 83 of the Act.
3. As the issues involved in all the cases are similar, this
Court heard the arguments in all the revisions and for the sake
of convenience, C.R.P.No.7399 of 2018 is taken to be the lead
case for narration of facts.
4. The facts leading to the present revision:
The Inspector Auditor, Wakfs, East Godavari District had
submitted a report on 24.07.2002 that wakf properties of
Mummidivaram mosque of an extent of Ac.18.47 cents,
Ac.2.32 cents and Ac.0.03 cents in R.S.No.575, 579/3 and
597/7 of Ainapuram Village, Mummidivaram Mandal, East
Godavari District were notified as wakf as per A.P.Gazette
No.16, Part-II, dated 19.04.1962 at Sl.No.146 vide its page
No.449. As per the report, these properties were under illegal
occupation of encroachers pursuant to illegal purchase
contrary to Section 51 (1A) of the Act.
5. On the basis of the report, notices were issued to the
petitioners under Section 52 of the Act on 03.09.2002 and
15.12.2003. It is stated that one Sri D.A.S.B.V.Ramana
Kumar, Advocate had submitted explanations on behalf of the
petitioners on 03.10.2002, 04.10.2002 and 05.10.2002. In
response to the explanation received, the Wakf Board vide
letter dated 05.11.2002 rejected the objections stating that
once a Wakf is always a Wakf.
6. Thereafter, the Wakf Board issued requisitions to the
District Collector on 13.01.2004 and 28.07.2006 to take over
possession of the schedule lands in the possession of the
petitioners in exercise of power conferred under Section 52 of
the Act. Reminders were said to have been issued by the
Wakf Board on 30.09.2006, 04.11.2006, 19.12.2007 and
23.04.2009 for recovery of possession.
7. The Inspector Auditor of Wakfs, East Godavari District
had informed the Wakf Board vide letter dated 19.08.2016
stating that the requisitions issued by the Wakf Board to the
District Collector (referred supra) were not received by the
District Administration and the Inspector Auditor, Wakfs
requested the State Board to issue fresh requisition.
8. In view of the letter, the Wakf Board on 27.10.2016
issued a requisition under Section 52(1) of the Act requesting
the District Collector to take requisite measures for evicting the
petitioners and deliver possession to the Wakf Board. On the
basis of the requisition, the District Collector vide proceedings
dated 13.03.2017 directed the Tahsildar, Mummidivaram to
handover possession of the lands referred therein to the
Inspector Auditor, Wakfs, East Godavari District within 30
days.
9. The Tahsildar, Mummidivaram vide letter dated
02.06.2017 informed the District Collector that possession of
the lands was taken from the petitioners on 30.05.2017. The
District Collector, thereupon directed the Tahsildar,
Mummidivaram to conduct 'ek saal' auction and send the
amount to the Wakf Board.
10. At that stage, the petitioners filed appeals on 18.07.2017
under Section 52(4) of the Act questioning the orders of
eviction. Counter affidavits were filed by the Wakf Board. The
appellate Court directed parties to maintain status quo pending
disposal of appeals.
11. In the appeals, the petitioners marked sale deeds and
encumbrance certificates pertaining to their respective
holdings. The Wakf Board marked as many as 22 documents
i.e. EXs.R.1 to R.22. No oral evidence was recorded by the
parties. The wakf Tribunal after considering the respective
contentions dismissed the appeals vide separate orders.
Hence, the present revisions are filed.
12. Arguments: Heard Sri Chavali Ramanand, learned
counsel for the petitioners and Sri P.Veera Reddy, learned
Senior Counsel on behalf of Sri Shaik Arifulla, learned Standing
Counsel for the Wakf Board.
13. The counsel for the petitioners contended that the
petitioner had purchased an extent of Ac.0.70 cents in
R.S.No.575 of Ainapuram Village, Mummidivaram Mandal,
East Godavari District under a Registered Sale deed dated
09.07.1984 vide Doc.No.6892 of 1984. The predecessors in
title were in possession as owners under registered sale deed
executed on 20.04.1939. It was contended that petitioner is a
bona fide purchaser of the property and is eking out livelihood
out of the income from the agricultural lands.
14. It was contended that other petitioners are also bona fide
purchasers of their respective extents and their predecessors
were in possession under registered sale deeds with regard to
their respective extents since 7-8 decades prior to the notices.
Therefore, there is a serious dispute with regard to title of the
property and summary proceedings under Section 52 of the Act
could not be maintained. It is his further argument that no
notice was issued by the Wakf Board and had disowned the
explanation on behalf of the petitioners which was referred to
by the Wakf Board. It is his further case that the scheduled
lands cannot be treated as Wakf lands and that the bar of
limitation was applicable under the Wakf Act, 1954 and as
such, by passage of time, the petitioners had prescribed their
title to the property.
15. Learned Senior Counsel would contend that a detailed
procedure as prescribed under Section 52 of the Act was
followed. In the explanation given by the petitioners through
their Advocate D.A.S.B.V.Ramana Kumar, no details of
purchase of property were given nor the details of the vendor of
the petitioners were provided and as such, the proceedings of
the Wakf Board cannot be faulted.
16. The learned Senior Counsel had referred to various
proceedings between the Wakf Board, District Collector and
Tahsildar, Mummidivaram to sustain the action of the Wakf
Board. It is his further case that appeal was filed beyond the
limitation prescribed under the Act and as such, the appeal
itself could not have been entertained by the Wakf Tribunal.
The present revisions are, therefore, not maintainable. As
regards the lapse of 14 years from the date of order of the
Wakf Board to initiation of recovery of possession, it is
submitted that the Wakf Board had been consistently issuing
reminder letters to the District Collector to take possession
under Section 52 of the Act.
17. After hearing the respective arguments at length, the
cases were reserved for judgment on 01.05.2024.
Subsequently, the respective counsel filed their written
arguments also. In the written arguments filed by the counsel
for the Wakf Board, it was mentioned that a corrigendum
notification pertaining to the lands in question was published in
A.P.Gazette No.15 at page 293 rectifying the survey numbers
and extent in column 9 of the subject Gazette Wakf notification
dated 19.04.1962.
18. As this aspect was not borne out of record, this Court
had posted the case for further hearing on 26.07.2024. In
response to the query of the Court as to nature of corrigendum
and for a copy of the same, the learned counsel for the Wakf
Board produced the same on 29.07.2024 before the Court and
explained that the corrigendum issued to the Gazette
notification dated 19.04.1962 is with regard to extents and
survey numbers in consonance with the Commissioner's report
of survey of Wakfs made some time in 1956. The batch of
cases were again reserved for judgment on 29.07.2024 after
receiving a copy of the corrigendum notification referred above.
19. Issues: After hearing the respective counsels, the
following issues arise for consideration:
(a) Whether the Wakf Board is justified in initiating
action under Section 52 of the Act on the basis of an
wakf notification dated 19.4.1962?
(b) Whether the Wakf Board is justified in initiating
action under Section 52 of the Act against the
petitioners where there is a serious dispute with
regard to title of the schedule properties?
20. Reasoning of the Court: Issue (a): Column 9 of the
original Wakf notification dated 19.04.1962 pertaining to the
subject lands is shown as under:
S.No.575 Extent Ac.3.50 cts
S.No.579/3 Extent Ac.15.80 cts
S.No.597/7 Extent Ac. 2.82 cts
Ac. 0.08 cts
21. In the notices issued to the petitioners on 03.09.2002
(Ex.R.18) and their predecessors in possession of the subject
lands, it is mentioned as under:
Sl.No. Name of the Name of possessor R.S.No. Extent
Ac. Ctc.
Village
1) Ainapuram Mohd.Ibrahim 575 1-10
2 ,, Md.Shamshuddin 575 0-08
3 ,, Shahjahan 575 0-09
4 ,, Mohd.Nayamath 575 0-20
5 ,, Mohd.Majaruddin 575 1-80
6 ,, Mohd.Anwaruddin 575 1-20
7 ,, Bashirunnisa Begum 575 0-70
8 ,, Mahabunnisa 575 0-50
9 ,, Penipey Seshaiah 575 0-80
10 ,, Manda nageswara 575 0-20
Rao
11 Ainapuram Sanaboina 575 0-55
Harikrishna
12 ,, Nakka Neelaveni 575 0-60
13 ,, Paiahla Sreeramulu 575 0-45
14 ,, Kommabattula 575 0-40
Hanumantha Rao
15 ,, Kondeti China Satyam 575 0-40
16 ,, Gidi Nagarathnam 575 0-15
17 ,, Penepey Sreeramulu 575 0-15
18 ,, Janu Satyanarayana 575 1-10
19 ,, Penepey 575 0-20
Subrahmanyam
20 ,, Vanka Chinna Satyam 575 0-35
21 ,, Enka Venkatarao 575 0-30
22 ,, Kolli Krishnamurthy 575 0-75
23 ,, Vanka Apparao 575 1-40
24 ,, Mohd.Roshanuddin 575 0-55
25 ,, Mohd.Nooruddin 575 0-25
26 ,, Abdul Rahaman 575 0-07
27 ,, Vanka Sreenu 575 1-00
28 ,, Vanka Trimurthulu 575 0-60
29 ,, Vanka Rambabu 575 1-00
30 ,, Attili Satyawati 579/3 0-82
31 ,, Kasyani Seshaveni 579/3 0-50
32 ,, Vanka Rambabu 579/3 1-00
33 ,, Giddi Venkataramaiah 597/7 0-03
22. As per the above notices, the total extent of land in each
of the survey number is as under;
S.No.575 Extent Ac.18.47 cts
S.No.579/3 Extent Ac. 2.32 cts
S.No.597/7 Extent Ac. 0.03 cts
23. There is apparent variance in the wakf notification dated
19.04.1962 and the notices dated 03.09.2002 with reference to
the extents of holdings vis-a-vis the survey numbers. This fact
was acknowledged by the State Wakf Board and the
corrigendum notification dated 14.04.2016 was issued only to
correct this anomaly. The corrigendum with regard to column 9
of the original wakf notification now reads as under:
S.No.575 Extent Ac.18.80 cts
S.No.579/3 Extent Ac.2.32 cts
S.No.597/7 Extent Ac.0.03 cts
24. The corrigendum Gazette Notification, dated 14.04.2016
is in substantive variance to the original notification dated
19.04.1962 as regards, the extents and the survey numbers.
Though, there are small overlapping extents of land, but those
lands may not be identifiable separately. In fairness, this
corrigendum notification should have been brought on record
before the appellate Court and to the notice of the District
Collector before issuing requisition for possession on
27.10.2016 (Ex.R.1).
25. The District collector, without independently examining
the Wakf notification dated 19.04.1962 and the lands to which
the requisition was sought, issued instructions to the Mandal
Revenue Officer, Mummidivaram to take possession of the
lands. In the opinion of the court, the District Collector is duty
bound to examine the requisition of the Wakf Board vis-a-vis,
the notification, notices under Section 52 and the proceedings
of the Wakf Board overruling the objections. Only upon
satisfaction of all the aspects and that the requisition is in broad
consonance with the Act, the District Collector may act on the
requisition. The subjective satisfaction of the District Collector,
being a substitute to the Civil Court, is all the more required,
since his action for recovery of possession would be impairing
the claims of persons in possession.
26. Be that as it may, on the basis of erroneous notification,
the State Wakf Board could not have issued notices under
Section 52 of the Act for summary eviction of the petitioners
unless the corrigendum was issued. In other words, the
petitioners could not have been termed to be in illegal
possession in the year 2002. In this case, the Wakf Board had
issued notices under Section 52 of the Act on 03.09.2002
(Ex.R.18) and determined these petitioners to be illegal
possession on 15.11.2002 (Ex.R.20). It was this determination
that was enforced through the District Collector by issuing
requisitions from time to time as required under Section 52(2)
of the Act for taking physical possession.
27. At this stage, it would be appropriate to refer to the
Judgment of Hon'ble Supreme Court in T.N Wakf Board v.
Hathija Ammal1. In this case, a suit was filed by the Wakf
Board for recovery of possession on the strength of notification
under Section 5(2) of the Act. The Trial Court held that the suit
property is a public wakf and not a private wakf and the
notification dated 24.12.1958 issued under Section 5(2) of the Act
did not include the suit property and hence the Wakf Board
cannot recover possession of the suit property. The first appellate
Court as well as High Court affirmed this common judgment and
decree. The Hon'ble Supreme Court affirmed the judgments and
held at paragraph 7 that in the absence of a notification covering
the suit schedule property therein, the suit for possession is not
maintainable. Paragraph 7 reads as under;
"7. The High Court is justified in holding that the Wakf
Board had no right to institute suit for declaration that any
2001(8) SCC 528
property is a wakf property as the scheme of the Act clearly
indicates. The High Court further found that as far as the
appellant is concerned with regard to title of any property, it
must comply with the requirements of Sections 4,5 and 6 or
27 of the Act, which means that if any property is not
published as wakf property as required under Section 5(2)
of the Act or the Board has not invoked the special power
under Section 27, the Wakf Board cannot file a suit for
declaration and possession and on that basis upheld the order
made by the Trial Court as affirmed by the First Appellate
Court."
28. The above case arose under the Wakf Act, 1954. The
above case was relied on in Madanuri Sri Rama Chandra
Murthy v. Syed Jalal2 in a similar fact situation. In the light of
the aforesaid decisions, it is not permissible for the Wakf Board
to initiate action under Section 52 of the Act in the year 2002.
29. Now, coming to the procedure to be followed for
issuance of corrigendum, under the Act, the corrigendum can
be issued after the persons in possession of respective extents
were put on notice and after due enquiry and consideration of
objections. The decision to overrule the objections is
appealable under the Act. The Hon'ble Supreme Court in
State of Andhra Pradesh v. A.P.State Wakf Board3 had
considered whether an errata/corrigendum notification required
2017 (13) SCC 174
2022 Livelaw (SC)136
prior issuance of notices to persons interested and after due
enquiry under the Act. After considering the respective
contentions, it was held that enquiry is required to be adhered
to, even for an errata notification and in the absence of such
enquiry, the errata was held to be invalid. The relevant
paragraphs are extracted below for ready reference;
―145. Thus, we find that the power of the Board to
investigate and determine the nature and extent of Wakf is
not purely an administrative function. Such power has to
be read along with Section 40 of the Act which enjoins ―a
Wakf Board to collect information regarding any property
which it has reason to believe to be wakf property and to
decide the question about the nature of the property after
making such inquiry as it may deem fit.‖ The power to
determine under Section 32(2)(n) is the source of power
but the manner of exercising that power is contemplated
under Section 40 of the 1995 Act. An inquiry is required to
be conducted if a Board on the basis of information
collected finds that the property in question is a Wakf
property. An order passed thereon is subject to appeal
before the Wakf Tribunal, after an inquiry required is
conducted in terms of sub-section (1) of Section 40.
Therefore, there cannot be any unilateral decision without
recording any reason that how and why the property is
included as a wakf property. The finding of the Wakf
Board is final, subject to the right of appeal under sub-
Section (2). Thus, any decision of the Board is required to
be as a reasoned order which could be tested in appeal
before the Wakf Tribunal.
146. Therefore, the Wakf Board has power to
determine the nature of the property as wakf under
Section 32(2)(n) but after complying with the procedure
prescribed as contained in Section 40. Such procedure
categorically prescribes an inquiry to be conducted. The
conduct of inquiry pre-supposes compliance of the
principles of natural justice so as to give opportunity of
hearing to the affected parties. The proceedings produced
by the Wakf Board do not show any inquiry conducted or
any notice issued to either of the affected parties.
Primarily, two factors had led the Wakf Board to issue the
Errata notification, that is, order of the Nazim Atiyat and
the second survey report. Both may be considered as
material available with the Wakf Board but in the absence
of an inquiry conducted, it cannot be said to be in
accordance with the procedure prescribed under Section
40 of the 1995 Act.
147. Since there is no determination of the fact
whether the property in question is a wakf property
after conducting an inquiry in terms of Section 40(1)
of the 1995 Act, the Errata notification cannot be
deemed to be issued in terms of Section 32 read with
Section 40 of the 1995 Act. Such determination alone
could have conferred right on the affected parties to avail
the remedy of appeal under Section 40 of the 1995 Act.‖
30. Though, this Court is not determining whether the
errata/corrigendum notification is in consonance with the
procedure contemplated under the Act, but is only explaining
that mere issuance of corrigendum would not suffice, unless
the procedure prescribed is adhered to.
31. Apart from the above reasons, in this case, there is
nothing on record to show the extent of land in each revenue
survey number as per revenue record and what is the extent of
Wakf land in that survey number. If the extent of the land in a
survey number is more than the extent of claim of Wakf Board,
how the present scheduled lands were identified as belonging
to Wakf is found wanting from the record.
32. In view of the above analysis, this Court is of the opinion
that the notices to the petitioners on 03.09.2002 (Ex.R.18)
under Section 52 of the Act cannot be sustained as the wakf
notification dated 19.04.1962 was admittedly erroneous as
stated supra. Issue (a) is accordingly answered.
33. Issue (b): The second aspect of the issue is, whether
summary inquiry provided under Section 52 of the Act, for
eviction, can be made applicable to the petitioners.
34. The original letter of the Inspector Auditor of Wakfs,
East Godavari District, Collector's Office, Kakinada, dated
24.07.2002 (Ex.R.2) is the foundational basis for issuance of
notices under Section 52 of the Act by the Wakf Board. In the
said letter dated 24.07.2002 (Ex.R.2), it was mentioned that
after verification of revenue records, it is noticed that Wakf
properties were alienated by the then Mutavallis about 30 to 40
years back.
35. In the arguments advanced on behalf of the Wakf Board,
it was urged that no details of the sale deeds were mentioned
in the explanation to notices and, therefore, the action of the
Wakf Board in rejecting the objections to notice under Section
52 on 15.11.2002 (Ex.R.20) cannot be faulted.
36. In the opinion of this Court, the fact that the source of title
was not explicitly mentioned in the explanation to the notices is
not of relevance as the letter dated 24.07.2002 (Ex.R.2), as
mentioned supra, itself acknowledges long standing
possession of the petitioners under registered sale deeds. The
Wakf Board was also given particulars of the alienations.
Letter dated 24.07.2002 (Ex.R.2) is extracted below in totality
and the relevant portions of the letter are highlighted for ready
reference.
"Ref:157/E.G/2001 Dated: 24-07-2002 Collector's Office
Kakinada
From: To
Shaik Noor Saheb, The Chief Executive Officer,
Inspector-Auditor of Wakfs, A.P.S.Wakf Board,
E.G.District, Kakinada Hyderabad.
Sub:- Wakf E.G.Dist., Minimidivaram Mandal - Particulars of
alienation of wakf properties in Mummidivaram Mandal - Report
submitted - Reg.
Ref: - 1. The Chief Executive officer, A.P State Wakf Board,
Phonograme No. 372/Pro/M6/20/2001 Dt.10-7-2002 originally
addressed to the Dist Rev. Officer, copy marked to Inspector-Auditor
Wakf.
2. Ref. H10 3668/2001 DL.09-05-01 of the Dist Collector, E.G.Dist
I invite kind attention to the references cited, I submit that there are 7
wakf institutions in the Mummidivaram Mandal. After verification of
the revenue records with Wakf records, it is found that the Wakf
properties are alienated by the then Mutawallies at about 30-40
years back. The statement of the particulars of Wakf properties in
Mummidivaram Mandal are shown below:
A.P.G. Name of the R.S.No. Extent Remakrs
No. institution Ac.
And location Cts.
146 Mosque, 575 18.47 Alienation
Ainapuram 579/3 2.32 Particulars list
597/7 0.03 enclosed
147 Panja, Anatavaram 131/12A 1.76 Alienation
122/2/10 0.63 Particulars list
enclosed
148 Darga, Kottalanka 23-21
149 Mosque, - -
Mummidivaram
156 Mosque, - -
Gunnepalli
157 Mosque, 249 5-96 Alienation
Anatavaram 250 6-99 Particulars
251 4-89 List enclosed.
252 9-97
253 7-20
254 10-86
255 6-72
256 8-31
3/ Mosque, Shia,
26-11- Ainapuram
After verification of the revenue record with wakf record the
list of the alienation particulars submitted to the Dist. Wakf Officer
and same is submitted to the Wakf Board, Hyderabad in the
reference 2nd cited for further necessary action.
I herewith enclose the particulars of the wakf properties
alienations in the Mummidivaram Mandal for favour of information
and necessary action.
Yours faithfully,
Inspector-Auditor of Wakfs
E.G.Dist. Kakinada.‖
37. The above highlighted portions of the letter would
explicitly mention about the sales in favour of third parties 30-
40 years back and particulars of the alienations were also
furnished to the Wakf Board. The letter was of the year 2002
and the possession of the petitioners is admittedly under
registered sale deeds from 1962/1972 onwards. In this
background, the proceedings of the Wakf Board in rejecting the
objections vide proceedings dated 15.11.2002 (Ex.R.20) only
on the ground that no details of the sales in favour of the
petitioners were given cannot be sustained.
38. Another fallacy in the argument with regard to lack of
details of sale deeds is that Section 52 of the Act contemplates
notices to persons in possession of Wakf properties under
wrongful alienations. The Section 52 is applicable only when
Wakf property is transferred to persons without sanction of the
Wakf Board. The Section 52 is extracted below for ready
reference;
―52. Recovery of 1[waqf] property transferred
in contravention of Section 51.--(1) If the Board is
satisfied, after making any inquiry in such manner as
may be prescribed, that any immovable property of a
[waqf] entered as such in the register of 1[waqf]
maintained under Section 36, has been transferred
without the previous sanction of the Board in
contravention of the provisions of Section 51 4[or
Section 56], it may send a requisition to the Collector
within whose jurisdiction the property is situate to
obtain and deliver possession of the property to it.‖
39. For the Section to apply, there should be transfer and
that transfer of Wakf property should have be held to be illegal.
In this case, no transfer was held to be illegal either in the
notices under Section 52 of the Act or the consequential
proceedings rejecting the objections of the petitioners. In this
case, curiously, the objections were rejected as no supporting
documents were filed by the petitioners. If there are no
documents, as mentioned above, Section 52 of the Act has no
applicability. Therefore, the very exercise of power under
Section 52 of the Act is not in consonance thereof.
40. Apart from that, the petitioners in these cases, are
claiming ownership to the scheduled lands and trace their
vendors' title to the year 1939 and anterior thereto under
registered sale deeds. The Wakf Board claims right to the
lands under the Wakf notification dated 19.04.1962, at best.
The petitioners and their predecessors in title claim to be in
possession of the scheduled properties all through these years.
41. It is not the case of the Wakf Board that they were in
possession of the scheduled lands at any time after the Wakf
notification dated 19.04.1962 or prior thereto, as there is no
mention of the same in any proceedings or in the pleadings.
42. Apart from the defence of title and long-standing
possession, Limitation Act of 1908 as well as Limitation Act,
1963 were applicable to the Wakf Act, 1954. The plea of
adverse possession was available under the Wakf Act, 1954. In
the event, the right of the Wakf Board stood barred by the
provisions of the Limitation Act, 1963 under Wakf Act, 1954,
the same cannot be revived under Wakf Act,1995. A vested
right cannot be divested as held by the Hon'ble Supreme Court
in T. Kaliamurthi v. Five Gori Thaikkal Wakf4.
43. In cases as the present, where serious disputes of right
and title are raised or are apparent from the record, summary
procedure under Section 52 of the Act cannot be resorted to
and only a suit before the Wakf Tribunal should be filed.
Otherwise, the Wakf Board would be deciding to itself the
complicated questions of title and enforcing that order by
eviction. It is to be noted that summary procedure is invoked to
enforce a pre-existing right, and in cases, where there is
serious dispute to that pre-existing right, summary procedure
could not be invoked.
44. The Hon'ble Supreme Court in the well cited case of
Govt. of A.P. v. Thummala Krishna Rao5, while considering
(2008) 9 SCC 306
(1982) 2 SCC 134
summary remedy of eviction under Section 6 of the A.P. Land
Encroachment Act, 1908, held that bona fide disputes raised by
way of defence cannot be decided in such proceedings and
only a regular suit should be filed. Paragraph 9 of the said
judgment is extracted below:
"9.The view of the Division Bench that the summary
remedy provided for by Section 6 cannot be resorted to
unless the alleged encroachment is of ―a very recent
origin‖, cannot be stretched too far. That was also the
view taken by the learned Single Judge himself in
another case which is reported in Meharunnissa Begum
v. State of A.P. which was affirmed by a Division Bench.
It is not the duration, short or long, of encroachment that
is conclusive of the question whether the summary
remedy prescribed by the Act can be put into operation
for evicting a person. What is relevant for the decision of
that question is more the nature of the property on which
the encroachment is alleged to have been committed and
the consideration whether the claim of the occupant is
bona fide. Facts which raise a bona fide dispute of
title between the Government and the occupant must
be adjudicated upon by the ordinary courts of law.
The Government cannot decide such questions
unilaterally in its own favour and evict any person
summarily on the basis of such decision. But
duration of occupation is relevant in the sense that a
person who is in occupation of a property openly for
an appreciable length of time can be taken, prima
facie, to have a bona fide claim to the property
requiring an impartial adjudication according to the
established procedure of law."
45. The above view was reiterated by the Hon'ble Supreme
Court in State of Rajasthan v. Padmavati Devi6 at paragraph
6:
"6. As noticed earlier Section 91 of the Act prescribes a
summary procedure for eviction of a person who is found
to be in unauthorised occupation of Government land. The
said provisions cannot be invoked in a case where the
person in occupation raises bona fide dispute about his
right to remain in occupation over the land. Dealing with
similar provisions contained in Section 6 of the Andhra
Pradesh Land Encroachment Act, 1945, this Court in Govt.
of A.P. v. Thummala Krishna Rao [(1982) 2 SCC 134]
has laid down that the summary remedy for eviction
provided by Section 6 of the said Act could be resorted to
by the Government only against persons who are in
unauthorised occupation of any land which is the property
of the Government and if the person in occupation has a
bona fide claim to litigate he could not be ejected save by
the due process of law and that the summary remedy
prescribed by Section 6 was not the kind of legal process
which is suited to an adjudication of complicated questions
of title. For the same reasons, it can be said that
summary remedy available under Section 91 of the Act
1995 Supp (2) SCC 290
is not the legal process which is suited for
adjudication of complicated questions of title where
the person sought to be evicted as an unauthorised
occupant makes a bona fide claim regarding his right
to be in possession. In such a case, the proper course
is to have the matter adjudicated by the ordinary
courts of law."
46. Similar view was taken in Kaikhosrou (Chick) Kavasji
Framji v. Union of India and another7 and State of U.P. v.
Zia Khan8 while considering summary eviction under different
enactments. The longstanding possession by itself was
considered to be a bona fide defence in the above cited cases.
47. In the understanding of this Court, Section 52 of the Act
is to enable the Wakf Board to seek for recovery of possession
of its notified properties and issue requisition to the District
Collector to take possession of such lands and avoid circuitous
process of Courts. This provision is applicable for transfer of
Wakf properties in apparent violation and of recent origin.
However, the said provision is not of any aid, when the persons
in possession of such properties for more than 30 to 40 years
under registered sale deeds are in possession by exercising
independent ownership rights. This is all the more, in these
cases, as the possession is prima facie beyond the period of
2019 (20) SCC 705
1998 (8) SCC 483
time prescribed for title by prescription under the Limitation Act,
1963, prior to enactment of the Wakf Act,1995. The Wakf
Board, in such cases, may have to institute a suit for
declaration of their title and consequential recovery of
possession rather than issuing notices under Section 52 of the
Act and determining the objections for itself and short circuit
the comprehensive adjudicatory process.
48. One more facet of this issue is that, the sale deed of the
vendor of the petitioner is dated 20.04.1939 and this is referred
to in the Ex.P.1 sale deed dated 09.07.1984 standing in favour
of the petitioner. In the year 1939, there was no bar of sale
under the Wakf Act in vogue at that time. The requirement of
permission of the Wakf Board to sell Wakf properties was
introduced for the first time under Section 36A of the Wakf Act,
1954, which corresponds to Section 51 of Wakf Act, 1995.
Under both the provisions, the recovery of possession under
Section 52 is contemplated only when the sale/alienation is
without permission of the Wakf Board. In the year 1939, there
was no Wakf Board and neither was there any bar for sale of
Wakf properties. Even if the property is assumed to be Wakf
for the sake of argument, still the sale in the year 1939 could
not be termed to be in violation of Section 36A of the Wakf Act,
1954, which corresponds to Section 51 of Wakf Act, 1995 for
the Wakf Board to initiate action under Section 52 of the Act.
49. For the above mentioned reasons, the action of the Wakf
Board under Section 52 of the Act in the facts of these cases
cannot be sustained. Issue (b) is answered accordingly.
50. In view of the foregoing reasons, the impugned
proceedings of the Wakf Board and the District Collector under
Section 52 of the Act as confirmed in the appeals by the Wakf
Tribunal are set aside.
51. The Civil Revision Petitions are allowed. The possession
of the scheduled lands shall be restored to the petitioners. No
order as to costs. As a sequel, the miscellaneous petitions, if
any, shall stand closed.
_________________
NYAPATHY VIJAY, J
Date: 23.08.2024
Note: L.R.copy be marked
KLP
