Madras High Court
S.Raju vs The Sub-Registrar on 12 July, 2023
W.P.No.32999 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.07.2023
CORAM :
THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM
W.P.No.32999 of 2022
and
W.M.P.Nos.32399 & 32400 of 2022
1.S.Raju
2.R.A.Aishwarya
3.R.A.Aravind ... Petitioners
Vs.
1.The Sub-Registrar,
SRO Pallavaram,
2nd Main Road, New Colony,
Chrompet, Chennai – 600 044.
2.The District Registrar (Chennai South)
District Registrar's Office,
Jennis Road, Saidapet,
Chennai – 600 015.
3.The Inspector General of Registration, Tamil Nadu,
Saidapet, Chennai – 600 015.
4.Tamil Nadu Waqf Board,
Chief Executive Officer,
No.1, JaffarSyrang Street,
VallalSeethakathi Nagar,
Chennai – 600 001.
Page 1 of 13
https://www.mhc.tn.gov.in/judis
W.P.No.32999 of 2022
5.The State of Tamil Nadu,
Represented by its Secretary to Government,
Registration Department,
Secretariat, Fort St. George,
Chennai – 600 009. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus calling for the records of
the 1st respondent pertaining to letter dated 04.11.2022 in
Na.Ka.No.799/2022 and the records of the 4th respondent pertaining to letter
dated 14.07.2022 in Rc.No.786/2022/B4/CGT and quash the same and
consequently direct the 1st respondent to assign the guideline value for the
petitioner's property comprised in Plot No.65, Kamaraj Nagar 3rd Street,
No.158, Jameen Pallavaram Village, Chennai-600 068, comprised in Old
Survey No.334/1, New Survey No.334/1A1J Ward No.B, Block No.27,
T.S.No.36, Chennai District, admeasuring 3400 sq.ft., in accordance with
law.
For Petitioners : Mr.Richardson Wilson
for M/s.P.Wilson Associates
For R1 to R3 & R5 : Mr.D.Ravichander
Special Government Pleader
For R4 : Mr.S.Haja Mohideen Gisthi
Page 2 of 13
https://www.mhc.tn.gov.in/judis
W.P.No.32999 of 2022
ORDER
The order impugned dated 04.11.2022 issued to the writ petitioner by
Sub-Registrar about the objection raised by the Chief Executive Officer of
Tamil Nadu Waqf Board, is under challenge in the present writ petition.
2.The writ petitioners state that they are the absolute owners of the
property more fully described in the present writ petition. The petitioners
have proposed to know about the guideline value of the property and the
indication shown in the office of the Sub-Registrar caused certain doubt and
therefore, the petitioners again approached the Sub-Registrar to know about
the status of the property belonging to the writ petitioners. The Sub-
Registrar informed the petitioners that the Tamil Nadu Waqf Board raised
an objection with reference to the subject property and therefore, the Sub-
Registrar cannot register any document in respect of the subject property.
The Sub-Registrar issued a communication to the petitioners stating that
there is an objection raised by the Tamil Nadu Waqf Board for the purpose
of dealing with the subject property and therefore, no document will be
https://www.mhc.tn.gov.in/judis
W.P.No.32999 of 2022
registered in view of Section 22-A of the Registration Act, 1908. Based on
the said information letter provided to the writ petitioners, the present writ
petition has been filed.
3.Learned counsel for the petitioners mainly contended that, under
Section 5 of the Waqf Act, 1995, the publication of list is mandatory, and
Sub-Section (2) of Section 5 indicates that “the Board shall examine the
report forwarded to it under sub-section (1) and forward it back to the
Government within a period of six months for publication in the Official
Gazette a list of Sunni wakf or Shia wakf in the State, whether in existence
at the commencement of this Act or coming into existence thereafter, to
which the report relates, and containing such other particulars as may be
prescribed”. Section 40 of the Waqf Act denotes decision if a property is a
waqf property. In the present case, the procedure as contemplated under
Section 5 and Section 40 has not been followed by the Waqf Board and
therefore, any such objection is not binding on the writ petitioners and thus,
the letter issued by the Sub-Registrar is liable to be set aside.
4.In support of the said contention, the learned counsel for the
https://www.mhc.tn.gov.in/judis
W.P.No.32999 of 2022
petitioners relied upon a judgment of the Hon'ble Supreme Court in the case
of State of Andhra Pradesh (now State of Telengana) v. A.P.State Wakf
Board and others reported in (2022) SCC Online SC 159 and the relevant
paragraphs are extracted hereunder :
“142.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
https://www.mhc.tn.gov.in/judis
W.P.No.32999 of 2022
Board is required to be as a reasoned order which could be
tested in appeal before the Wakf Tribunal.
143.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.”
5.Learned counsel appearing on behalf of the Waqf Board furnished a
copy of Proforma Report, which is an extract from Bound Register, signed
by Assistant Commissioner of Waqfs, Chengalpet District. Relying on the
said Proforma Report, the learned counsel for the Waqf Board contended
https://www.mhc.tn.gov.in/judis
W.P.No.32999 of 2022
that the procedures as contemplated were followed and the objection letter
was given by the Waqf Board to the Sub-Registrar under Section 22-A of
the Registration Act, and therefore, the petitioners have no right,
whatsoever, in respect of the subject property.
6.The learned counsel for the Waqf Board has now presented a copy
of the Proforma Report showing that the subject property is belonging to the
Waqf. Thus, it is for the petitioners to establish their title and ownership in
the manner known to law before the appropriate forum.
7.The Power of Judicial Review of the High Court under Article 226
of the Constitution cannot be expanded for the purpose of adjudication of
the disputes of civil nature. All such disputes are to be resolved based on the
documents and evidences available on record and before the Competent
Forum. Merely drawing an inference based on the revenue documents, title
cannot be settled and in the event of passing any such order, it would cause
prejudice on either of the parties.
8.This Court cannot conduct a roving enquiry in respect of such
https://www.mhc.tn.gov.in/judis
W.P.No.32999 of 2022
controversies or discrepancies in the matter of property disputes. Therefore,
the petitioners, if at all aggrieved, have to approach the Competent Forum.
9.As far as the powers of the Registering Authority under Section 22-
A is concerned, the Registering Authority has acted in consonance with the
provisions of the Act and based on the objections raised by the Wakf Board.
Once the objections are filed by the Religious Institutions and/or by the
Tamil Nadu Wakf Board, the Registering Authority has no objection. Since
the language of the word used in the Section 22-A is 'shall', the Registering
Authority has no power of adjudication on these disputed issues of civil
nature. Therefore, they acted in accordance with Section 22-A of the Act
and if the parties are claiming any right, they have to establish their case
before the Competent Forum. Thus, this Court do not find any infirmity in
respect of the stand taken by the Registering Authority based on the
objection submitted by the Tamil Nadu Wakf Board. The petitioners are at
liberty to approach the appropriate Forum.
10.It is brought to the notice of this Court that, under Section 83 (1)
of the Wakf Act, 1995, the Tribunal has already been constituted and
https://www.mhc.tn.gov.in/judis
W.P.No.32999 of 2022
enumerates that “The State Government shall, by Notification in the Official
Gazette, constitute as many Tribunals as it may think fit, for the
determination of any dispute, question or other matter relating to a Wakf or
Wakf property under this Act and define the local limits and jurisdiction of
such Tribunals”.
11.The scope of Section 83 (1) has been elaborately discussed by the
Apex Court in the case of Rashid Wali Beg vs. Farid Pindari [(2022) 4
SCC 414]. Section 83 (7) in unambiguous terms stipulates that “the
decision of the Tribunal shall be final and binding upon the parties to the
application and it shall have the force of a decree made by the Civil
Court”.
12.As far as the judgment relied upon by the learned counsel for the
petitioners is concerned, that is not relating to the registration of a document
or under the provisions of the Registration Act. The limited powers
conferred on the Registering Authority is to refuse registration in the event
of any objection submitted by any authority under Section 22-A of the
Registration Act. The Registering Authority is incompetent to conduct an
https://www.mhc.tn.gov.in/judis
W.P.No.32999 of 2022
enquiry or adjudicate the disputed issues regarding title, ownership or
otherwise. Therefore, the petitioners cannot seek any relief against the Sub-
Registrar, who is the Registering Authority, with reference to the objection
raised by the Tamil Nadu Waqf Board. The right of title is to be proved
independently before the competent forum. Therefore, the action initiated
by the Sub-Registrar/Registering Authority in consonance with Section
22-A of the Registration Act cannot be found fault with and in fact, is in
consonance with the spirit of Section 22-A of the Act.
13.This being the factum, the petitioners are at liberty to approach the
competent forum for the purpose of proving their title or ownership. In the
event of approaching any such forum, the period during which the present
writ petition was pending before this Court is to be taken into consideration
for the purpose of condoning the delay, if any.
14.With this liberty, this writ petition is disposed of. No costs.
Consequently, connected miscellaneous petitions are closed.
12.07.2023
https://www.mhc.tn.gov.in/judis
W.P.No.32999 of 2022
mkn
Internet : Yes
Index : Yes / No
Neutral citation : Yes / No
Speaking order / Nonspeaking order
To
1.The Secretary to Government,
State of Tamil Nadu,
Registration Department,
Secretariat, Fort St. George,
Chennai – 600 009.
2.The Inspector General of Registration, Tamil Nadu,
Saidapet, Chennai – 600 015.
3.The Chief Executive Officer,
Tamil Nadu Waqf Board,
No.1, JaffarSyrang Street,
VallalSeethakathi Nagar,
Chennai – 600 001.
4.The District Registrar (Chennai South)
District Registrar's Office,
Jennis Road, Saidapet,
Chennai – 600 015.
5.The Sub-Registrar,
SRO Pallavaram,
2nd Main Road, New Colony,
Chrompet, Chennai – 600 044.
https://www.mhc.tn.gov.in/judis
W.P.No.32999 of 2022
S.M. SUBRAMANIAM, J.
mkn
W.P.No.32999 of 2022
https://www.mhc.tn.gov.in/judis
W.P.No.32999 of 2022
12.07.2023
https://www.mhc.tn.gov.in/judis
