Telangana High Court

The Telangana State Waqf Board, vs M/S. Solithro Private Limited, on 4 December, 2023

          THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
                               AND
          THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR


    + WRIT APPEAL No.1432 of 2016, W.P.Nos.23242 of 2008
                     and 19205 of 2019


%     Date: 04.12.2023

#     Telangana State Waqf Board
                                                        ... Appellant
                                v.



$     M/s.Solithro Private Limited, Rep. By its Director
      And others

                                                      ... Respondents


! Counsel for the appellant in W.A.No.1432 of 2016:

                                  Mr. B.Mayur Reddy,
                                  learned Senior Counsel,
                                  for Mr. Mohd. Ismail

^ Counsel for the respondent No.1 in W.A.No.1432 of 2016:

                                     Mr. Vedula Venkata Ramana,
                                     learned Senior Counsel, for
                                     M/s.Bharadwaj Associates



< GIST:



     HEAD NOTE:
                                  2




? CASES REFERRED:

  1. (2006) 3 SCC 354
  2. (2020) 8 SCC 129
  3. (2017) 13 SCC 174
  4. (2022) 4 SCC 414
  5. (1998) 2 SCC 642
  6. W.A.No.318 of 2021
  7. S.L.P. Nos.4166-4175 of 2022
  8. (1995) 1 SCC 104
  9. (2001) 8 SCC 528
  10. (2018) 17 SCC 106
  11. 2021 SCC OnLine TS 1449
  12. 2022 SCC OnLine TS 1073
  13. 2022 SCC OnLine SC 1653
  14. 1955 (1) SCR 893 : AIR 1955 SC 84
  15. (2017) 9 SCC 463
  16. (2008) 9 SCC 306
  17. (2021) 5 SCC 1
  18. AIR 1951 SC 128
  19. AIR 2007 SC 232
  20. (1992) 2 SCC 598
  21. (2013) 1 SCC 353
  22. (2022) 2 SCC 25
  23. 2022 SCC OnLine SC 159
  24. (1998) 8 SCC 1
  25. (2003) 2 SCC 107
  26.(2021) 6 SCC 771
                                             3




            THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
                               AND
            THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR

      WRIT APPEAL No.1432 of 2016, W.P.Nos.23242 of 2008
                     and 19205 of 2019


COMMON ORDER:

(Per the Hon'ble the Chief Justice Alok Aradhe)

The intra-court appeal has been filed by Telangana State

Wakf Board (hereinafter referred to as 'Wakf Board') against an

order dated 22.09.2016 passed by the learned Single Judge by

which writ petition preferred by M/s.Solithro Private Limited

(hereinafter referred to as 'company') had been allowed and the

notification dated 15.11.2001 notifying the list of properties

situated at Narsapur and Siddipet Taluks of Medak District as

properties belonging to the Wakf has been quashed. In

W.P.No.23242 of 2008, the petitioner therein has assailed the

validity of notification dated 15.11.2001 declaring the

properties to be wakf property and has sought relief of

de-notification of the land in survey Nos.33 to 38, 40, 42 to 70,

72 to 74 and 76 to 87 of Sikindlapur Village, Shivampet

Mandal, Medak District. In W.P.No.19205 of 2019, the

petitioner seeks a direction to Inam Tribunal cum Revenue

Divisional Officer to decide file No.H/5652/98 by issuing

pattadar pass book and title in favour of the petitioner in

respect of the land measuring Acas.11.00 bearing Survey

Nos.60 and 65 situated at Sikindlapur village, Shivampet

Mandal, Medak District.

2. Similar issues arise for consideration in the writ appeal

as well as the writ petitions. Therefore, the writ appeal and the

writ petitions were heard analogously and are being decided by

this common order. For the facility of reference, facts from

W.A.No.1432 of 2016 are being referred to.

(i) FACTS:

3. One Smt. Azeez Bee and others filed applications before

the Revenue Divisional officer seeking Occupancy Rights

Certificate. The aforesaid applications were rejected by an

order dated 18.12.1998. Being aggrieved, an appeal was filed

which was also dismissed by an order dated 21.06.2001 by

Joint Collector. The orders passed by the Revenue Divisional

Officer and the Joint Collector were challenged by Smt. Azeez

Bee and others in a writ petition, namely W.P.No.6107 of 2003,

which was dismissed on 28.03.2006. The aforesaid order was

upheld in a writ appeal, namely W.A. (SR) No.63303 of 2026,

which was dismissed for default on appearance on 01.09.2006.

4. It appears that one Axis Engineers and others had

purchased lands under various sale deeds measuring

Acs.23.08 guntas in survey Nos.136, 137, 227 and 228 of

Shabhaspally Village, Shivampet Mandal of Medak District

(hereinafter referred to as 'subject land'). The aforesaid lands

were mortgaged to ING Vysya Bank Limited and State Bank of

India. The subject land was sold in auction held on 26.12.2013

and 13.08.2014, which was conducted by ING Vysya Bank.

The company purchased the subject land in the said auction

and on 07.02.2014 and 16.08.2014 sale certificates were

issued in their favour.

5. On the basis of the survey conducted in the year 1963

under the Wakf Act, 1954 (hereinafter referred to as 'the 1954

Act'), a notification dated 15.11.2001 under Section 5 of the

Wakf Act, 1995 (hereinafter referred to as 'the 1995 Act') was

issued by the State Government by which the subject land was

declared to be wakf property.

(ii) ORDER OF LEARNED SINGLE JUDGE:

6. The company thereupon, filed a writ petition in which the

validity of the notification issued under Section 5 of the 1995

Act, dated 15.11.2001 was challenged. The learned Single

Judge by an order dated 22.09.2016 inter alia held that writ

petition does not suffer from delay and laches and the rule of

exhaustion of alternative remedy is a rule of discretion and not

a compulsion. It was further held that survey conducted under

Section 4 of the 1954 Act is not saved under Section 112(2) of

the 1995 Act. The learned Single Judge, therefore, quashed the

notification dated 15.11.2001 and allowed the writ petition. In

the aforesaid factual background, the Wakf Board has filed

this appeal.

(iii) SUBMISSIONS ON BEHALF OF WAKF BOARD:

7. Learned Senior Counsel for the Wakf Board has

submitted that the survey carried out under Section 4 of the

1954 Act is saved under Section 112(2) of the 1995 Act. It is

further submitted that the rights and obligations accrued to

the parties were not obliterated while repealing the 1954 Act. It

is also submitted that the survey got merged with the

notification and therefore, the question of delay and laches in

issuing the impugned notification dated 15.11.2001 under

Section 5 of the 1995 Act does not arise. It is contended that

notification declaring the property as wakf property was issued

on 15.11.2001, whereas the writ petition was filed belatedly on

05.11.2014. Learned Single Judge, therefore, ought to have

appreciated that the writ petition suffers from delay and laches

and merely because the company purchased the subject land

under the provisions of the Securitisation and Reconstruction

of Financial Assets and Enforcement of Security Interest Act,

2002 (hereinafter referred to as 'the SARFAESI Act') in the year

2013 and 2014, the same cannot be a ground to hold that the

writ petitions filed by the company does not suffer from delay

and laches.

8. It is also urged that the company ought to have

approached the Wakf Tribunal under Section 6(1) of the 1995

Act instead of filing the writ petition. In support of the

aforesaid submissions, reliance has been placed on the

decisions of the Supreme Court in Gammon India Limited vs.

Special Chief Secretary 1, Indore Development Authority

vs. Manohar Lal 2, Madanuri Sri Rama Chandra Murthy vs.

Syed Jalal 3, Rashid Wali Beg vs. Farid Pindari 4, Sayeed Ali

vs. Andhra Pradesh Wakf Board 5, Telangana State Wakf

Board vs. P.Radha Madhavi 6 and Telangana State Wakf

Board vs. P.Radha Madhavi 7.

(iv) SUBMISSIONS ON BEHALF OF COMPANY:

9. On the other hand, learned Senior Counsel for the

company has submitted that notification dated 15.11.2001

has been published under Section 5 of the 1954 Act which has

been repealed by the 1995 Act. Therefore, the notification

issued under repealed provision of law is void and the question

of its invalidity can be set up at any stage. It is further

submitted that since the notification is null and void, the

doctrine of delay and laches does not apply. It is contended

that the company is the purchaser of the subject land in the

auction held on 26.12.2013 and 13.08.2014. It is also argued

1 (2006) 3 SCC 354 2 (2020) 8 SCC 129 3 (2017) 13 SCC 174 4 (2022) 4 SCC 414 5 (1998) 2 SCC 642

that the provisions of SARFAESI Act have an overriding effect

over the other provisions of law. It is further contended that

the issue whether or not the survey conducted under the 1954

Act is saved under the 1995 Act, may not arise for

consideration in the facts of the case, as the notification itself

has been issued under the Repealed Act. It is argued that only

upon publication of notification under Section 5(2) of the 1954

Act, the proprietary rights of a person are affected. In support

of the aforesaid submissions, learned Senior Counsel has

placed reliance on D.C.Bhatia vs. Union of India 8, Tamil

Nadu Wakf Board vs. Hathija Ammal 9, Roma Sonkar vs.

Madhya Pradesh State Public Service Commission10,

Telangana State Wakf Board vs. L.Srinivasa Reddy 11,

Kailash Singh Rajpurohit vs. State of Telangana 12 and

Maharashtra State Board of Wakfs vs. Shaikh Yusuf Bhai

Chawla 13.

8 (1995) 1 SCC 104 9 (2001) 8 SCC 528 10 (2018) 17 SCC 106 11 2021 SCC OnLine TS 1449 12 2022 SCC OnLine TS 1073 13 2022 SCC OnLine SC 1653

(v) RELEVANT PROVISIONS:

10. We have considered the submissions made on both sides

and perused the record. Before proceeding further, it is

apposite to take note of relevant statutory provisions. The

Wakf Act, 1954 was enacted to provide for better

administration and supervision of wakfs. The 1954 Act was

repealed by the Wakf Act, 1995 which was enacted with an

object to provide for better administration of wakfs and

matters connected therewith.

11. Section 4 of the 1954 Act deals with survey, whereas

Section 5 provides for publication of list of wakfs. Section 6

deals with disputes regarding wakfs. The relevant provisions of

the 1954 Act and the 1995 Act prior to its amendment by Act

No.27 of 2013 dated 01.11.2013 are extracted below for the

facility of reference:-

         Wakf Act, 1954                               Wakf Act, 1995
1.     Section              4          - 1. Section 4 - 4. Preliminary
"4.Preliminary        survey          of survey       of Wakfs--(1)   The    State
wakfs.          (1) The          State Government may, by notification in
Government            may,            by the Official Gazette, appoint for the
notification     in   the       Official State    a     Survey     Commissioner

Gazette, appoint for the State of Wakfs and as many Additional or

a Survey Commissioner of Assistant Survey Commissioners Wakfs and as many Additional of Wakfs as may be necessary for or Assistant Survey the purpose of making a survey Commissioners of Wakfs as of Wakfs existing in the State at the may be necessary for the date of the commencement of this purpose of making a survey of Act.

wakfs existing in the State at (2) All Additional and Assistant the date of the Survey Commissioners of Wakfs commencement of this Act. shall perform their functions under (2) All Additional and this Act under the general Assistant Survey supervision and control of the Commissioners of Wakfs shall Survey Commissioner of Wakfs. perform their functions under (3) The Survey Commissioner shall, this Act under the general after making such inquiry as he supervision and control of the may consider necessary, submit his Survey Commissioner of report, in respect of Wakfs existing Wakfs.

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

at the date of the

(a) the number of Wakfs in the commencement of this Act in State showing the Shia Wakfs and the State or any part thereof, Sunni Wakfs separately;

to the State Government

(b) the nature and objects of containing the following each Wakf;

particulars, namely, (a) the

or as the case may be, any

(d) the amount of land revenue, part thereof, showing the Shia cesses, rates and taxes payable in

wakfs and Sunni wakfs respect of each Wakf; separately; (b) the nature and (e) the expenses incurred in the objects of each wakf; (c) the realisation of the income and the gross income of the property pay or other remuneration of the comprised in each wakf; mutawalli of each Wakf; and

(d) the amount of land (f) such other particulars relating to revenue, cesses, rates and each Wakf as may be prescribed.

taxes payable in respect of (4) The Survey Commissioner shall, such property; (e) the while making any inquiry, have the expenses incurred in the same powers as are vested in a civil realisation of the income and Court under the Code of Civil the pay or other remuneration Procedure, 1908 (5 of 1908) in of the mutawalli of each wakf;

respect of the following matters, and (f) such other particulars namely:--

relating to each wakf as may

(a) summoning and examining any be prescribed.

witness;

(4) The Survey Commissioner

(b) requiring the discovery and shall, while making any production of any document;

inquiry, have the same powers

under the Code of Civil

(d) issuing, commissions for the Procedure, 1908 (5 of 1908), examination of any witness or in respect of the following accounts;

matters, namely:--

(e) making any local inspection or

(a) summoning and examining local investigation;

any witness; (b) requiring the

(f) such other matters as may be discovery and production of prescribed.

any document;

(c) requisitioning any public (5) If, during any such inquiry, any record from any court or dispute arises as to whether a

office; (d) issuing commissions particular Wakf is a Shia Wakf or for the examination of any Sunni Wakf and there are clear witness or accounts; indications in the deed of Wakf as

(e) making any local to its nature, the dispute shall be inspection or local decided on the basis of such deed.

investigation;      (f)    any    other
                                          (6) The State Government may, by
matter       which          may     be

notification in the Official Gazette, prescribed. (5) If, during any direct the Survey Commissioner to such inquiry, any dispute make a second or subsequent arises as to whether a survey of Wakf properties in the particular wakf is a Shia wakf State and the provisions of sub-

or Sunni wakf and there are sections (2), (3), (4) and (5) shall clear indications in the deed of apply to such survey as they apply wakf as to its nature, the to a survey directed under sub-

dispute shall be decided on section (1):

the basis of such deed.

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

2. Section 5 - Publication of 2. Section 5 - 5. Publication of list list of wakfs.-- (1) On receipt of Wakfs:.--(1) On receipt of a of a report under sub-section report under sub-section (3) of (3) of section 4, the State section 4, the State Government Government shall forward a shall forward a copy of the same to copy of the same to the Board. the Board.

(2) The Board shall examine (2) The Board shall examine the the report forwarded to it report forwarded to it under sub- under sub-section (1) and section (1) and publish in the publish in the Official Gazette Official Gazette a list of Sunni a list of wakfs existing in the Wakfs or Shia Wakfs, in the State, State, or as the case may be, whether in existence at the the part of the State ------------ commencement of this Act or

-------------- 1. Subs. by Act 38 coming into existence thereafter, to of 1969, s.4, for "in the State" which the report released, and (with retrospective effect). 2. containing such other particulars Subs. By s.5, ibid., for as may be prescribed.

"existing in the State" (with retrospective effect). 108 to which the report relates, and containing such particulars as may be prescribed.

3. Section 6 - 6. Disputes 3. Section 6 - 6. Disputes regarding wakfs.-- (1) If any regarding Wakfs.--(1) If any question arises whether a question arises whether a particular property specified particular property specified as wakf property in a list of as Wakf property in the list wakfs published under sub- of Wakfs is Wakf property or not or section (2) of section 5 is wakf whether a Wakf specified in such property or not or whether a list is a Shia Wakf or Sunni Wakf, wakf specified in such list is a the Board or the Mutawalli of Shia wakf or Sunni wakf, the the Wakf or any person interested Board or the mutawalli of the therein may institute a suit in a wakf or any person interested Tribunal for the decision of the therein may institute a suit in question and the decision of the

a civil court of competent Tribunal in respect of such matter jurisdiction for the decision of shall be final:

the question and the decision Provided that no such suit of the civil court in respect of shall be entertained by the Tribunal such matter shall be final: after the expiry of one year from the Provided that no such suit date of the publication of the list shall be entertained by the of Wakfs: civil court after the expiry of Explanation: For the purposes of one year from the date of the this Section and Section 7, the publication of the list of wakfs expression "any person interested under sub-section (2) of therein", shall, in relation to any Section 5: Provided further property specified as Wakf property that in the case of the list of in the list of Wakfs published after wakfs relating to any part of the commencement of the Act, shall the State and published or include also every person who, purporting to have been though not interested in the Wakf published before the concerned, is interested in such commencement of the Wakf property and to whom a reasonable (Amendment) Act, 1969, (38 of opportunity had been afforded to 1969.) Such suit may be represent his case by notice served entertained by the civil court on him in that behalf during the within the period of one year course of the relevant enquiry from such commencement. under Section 4.

(2) Notwithstanding anything (2) Notwithstanding anything contained in sub-section (1), no contained in sub-section (1), proceeding under this Act in no proceeding under this Act respect of any Wakf shall be stayed in respect of any wakf shall be by reason only of the pendency of stayed by reason only of the any such suit or of any appeal or pendency of any such suit or other proceeding arising out of

of any appeal or other such suit.

proceeding arising out of such (3) The Survey Commissioner shall suit.

not be made a party to any suit under sub-section (1) and no suit, (3) The Survey Commissioner prosecution or other legal shall not be made a party to proceeding shall lie against him in any suit under sub-section (1) respect of anything which is in and no suit, prosecution or good faith done or intended to be other legal proceeding shall lie done in pursuance of this Act or against him in respect of any rules made thereunder.

anything which is in good faith done or intended to be (4) The list of Wakfs shall, unless it done in pursuance of this Act is modified in pursuance of a or any rules made thereunder.

decision of the Tribunal under sub- (4) The list of wakfs published section (1), be final and conclusive. under sub-section (2) of Section 5 shall, unless it is (5) On and from the modified in pursuance of a commencement of this Act in a decision of the civil court State, no suit or other legal under sub-section (1), be final proceeding shall be instituted or and conclusive. commenced in a court in that State in relation to any question referred to in sub-section (1).

12. The Supreme Court in Madanuri Sri Rama Chandra

Murthy (supra) has considered Sections 4, 5 and 6 of the 1954

Act as well as the 1995 Act and has held that Sections 4 to 6

contained in both the Acts are almost pari materia with each

other. Paras 12, 13 and 16 are extracted below for the facility

of reference:

12. Section 4 of the 1954 Act, empowered the State Government to appoint a State Commissioner, and as many Additional and Assistant Survey Commissioners of Wakf as may be necessary, by a notification in the Official Gazette for the purpose of making survey of wakf properties existing within the State. The Survey Commissioner after making a survey of wakf properties would submit his report to the State Government containing various particulars as mentioned in sub-

sections (3) and (4) of Section 4 of the Act. Section 5 of the 1954 Act mandated that on receipt of such report from the Survey Commissioner made under sub-section (3) of Section 4, the State Government should forward a copy of the same to the Wakf Board. The Wakf Board would examine the report forwarded to it and publish in Official Gazette, the list of wakfs in the State. For resolving the disputes regarding wakfs, Section 6 of the 1954 Act, provided jurisdictional civil court as a forum and decision of civil court in respect of such matters should be final. It was also clarified that no such suit should be entertained by the civil court, after the expiry of one year from the date of publication of the list of wakfs as per sub-section (2) of Section 5. Sub-section (4) of Section 6 stated that the list of wakfs published under sub-section (2) of Section 5 shall be final and conclusive unless such list is modified on the direction of the civil court.

13. The provisions found in Sections 5 and 6 of the Wakf Act, 1995 and the 1954 Act are almost akin to each other. However, the change brought in by Parliament

under the 1995 Act is that, in the case of dispute regarding wakfs, the aggrieved party needs to approach the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and consequently, the jurisdiction of the civil court is taken away. Except the aforesaid change, no other substantial modification is found in those provisions. Section 7 of the 1995 Act empowers the Tribunal to determine the disputes, regarding auqaf/wakfs, the particulars of which are specified therein.

16. Thus, it is amply clear that the conducting of survey by the Survey Commissioner and preparing a report and forwarding the same to the State or the Wakf Board precedes the final act of notifying such list in the Official Gazette by the State under the 1995 Act (it was by the Board under the 1954 Act). As mentioned supra, the list would be prepared by the Survey Commissioner after making due enquiry and after valid survey as well as after due application of mind. The enquiry contemplated under sub-section (3) of Section 4 is not merely an informal enquiry but a formal enquiry to find out at the grass root level, as to whether the property is a wakf property or not. Thereafter the Wakf Board will once again examine the list sent to it with due application of its mind and only thereafter the same will be sent to the Government for notifying the same in the Gazette. Since the list is prepared and published in the Official Gazette by following the aforementioned procedure, there is no scope for the plaintiff to get the matter reopened by generating some sort of doubt about Survey Commissioner's Report. Since the Surveyor's Report was required to be considered by the State Government as well as the Wakf Board (as the case

may be), prior to finalisation of the list of properties to be published in the Official Gazette, it was not open for the High Court to conclude that the Surveyor's Report will have to be reconsidered. On the contrary, the Surveyor's Report merges with the gazette notification published under Section 5 of the Wakf Act.

(vi) ISSUES:

13. After noticing the provisions of the 1954 Act and the

1995 Act, we may advert to the issues which arise for

consideration in this appeal. The following issues arise for

consideration in this appeal and the writ petitions:

(i) Whether the survey conducted under Section 4 of

the Wakf Act, 1954, is saved under Section 112(2) of the Wakf

Act, 1995?

(ii) Whether the notification dated 15.11.2001 has

been issued under Section 5(2) of the Wakf Act, 1954 and is

therefore nullity?

(iii) Whether the writ petition filed by the company

suffers from delay and laches? and

(iv) Whether the Wakf Tribunal is the only authority

under Section 6(1) of the Wakf Act, 1995 to examine the

validity of the impugned notification dated 15.11.2001 and the

same cannot be examined in a proceeding under Article 226 of

the Constitution of India?

(vii) ANALYSIS:

(i) Whether the survey conducted under Section 4 of the

Wakf Act, 1954, is saved under Section 112(2) of the

Wakf Act, 1995?

14. The making of survey under Section 4 of the Act is not a

mere administrative act but it is to be informed by a quasi-

judicial inquiry. The surveyor has the power to find out

whether a particular property is a wakf and Commissioner has

to determine the aspects which have been mentioned in

Section 4 of the Act (see Maharashtra State Board of Wakfs

(supra)). The effect of repeal of a statute is to destroy all

inchoate rights and all causes of action which may have arisen

under the provisions of repealed statute. When repeal is

followed by a fresh legislation on the same subject, the Court

undoubtedly has to look into the provisions of the new Act, but

only for the purpose of determining whether they indicate a

different intention. The line of enquiry would be, not whether

the new Act expressly keeps alive old rights and liabilities, but

whether it manifests an intention to destroy them (see State of

Punjab vs. Mohar Singh 14). The aforesaid view was reiterated

with approval in Gammon India (supra) and it was held that

the issue with regard to the continuation of pending

proceedings under a repealed statute depends either under the

savings contained in the Repeal Act or under Section 6 of the

General Clauses Act. It was further held that question whether

a right was acquired or a liability incurred under a statute

before its repeal in each case depends on the construction of a

statute and the facts of a particular case. It was also held that

when there is a repeal of an enactment and simultaneous

re-enactment, the re-enactment has to be considered as

reaffirmation of the old law and the provisions of the repealed

Act which are thus re-enacted continue in force

uninterruptedly unless the re-enacted enactment manifests an

intention incompatible with or contrary to the provisions of the

repealed Act. The aforesaid view was again reiterated with

approval in State of Haryana vs. Hindustan Construction

Company Limited 15.

14 1955 (1) SCR 893 : AIR 1955 SC 84 15 (2017) 9 SCC 463

15. Section 112 of the 1995 Act, which deals with repeal and

savings, is extracted below for the facility of reference:

112. Repeal and savings:- (1) The Wakf Act, 1954 (29 of 1954) and the Wakf (Amendment) Act, 1984 (69 of 1984) are hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act.

(3) If, immediately before the commencement of this Act, in any State, there is in force in that State, any law which corresponds to this Act that corresponding law shall stand repealed:

Provided that such repeal shall not affect the previous operation of that corresponding law, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under the corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act was in force on the day on which such things were done or action was taken.

16. In the instant case, the repeal of an enactment, namely

1954 Act is accompanied with simultaneous re-enactment

namely the 1995 Act. In Madanuri Sri Rama Chandra Murthy

(supra), the Supreme Court has held that the provisions of

Sections 4, 5 and 6 of the 1954 Act as well as the 1995 Act are

substantially similar. Therefore, the legislative intention can

safely be inferred as re-affirmation of the old law.

17. It is pertinent to note that scope and effect of Section

112(2) of the 1995 Act was considered by the Supreme Court

in T.Kaliamurthi v. Five Gori Thaikkal Wakf 16 and it was

held that Section 112 of the Act is in conformity with Section 6

of the General Clauses Act, which also provides that a repeal

shall not affect any right, privilege, obligation or liability

acquired or incurred under the repealed enactment unless a

contrary intention appears. Thus, under Section 6 of the

General Clauses Act and Section 112 of the Wakf Act, prior

operation of the repealed enactment or the legal proceedings or

remedies instituted, continued or enforced are saved.

18. On perusal of Section 112(2) of the 1995 Act, the

legislative intent to save anything done or any action taken

under the 1954 Act is manifest. Therefore, anything done or

any action taken under the 1954 Act is saved and shall be

deemed to have been done or taken under the corresponding

provisions of the 1995 Act. The re-enacted enactment i.e., the

1995 Act does not contain any intention incompatible with or

contrary to the provisions of the Repealed Act. Therefore, the

16 (2008) 9 SCC 306

survey conducted under Section 4 of the 1954 Act is saved

under Section 112(2) of the 1995 Act. The first issue is,

therefore, answered in the affirmative.

(ii) Whether the notification dated 15.11.2001 has been

issued under Section 5(2) of the Wakf Act, 1954 and is

therefore nullity?

17. A survey made in exercise of powers under Section 4(2) of

the 1954 Act can be made the basis for issuing the notification

under Section 5(2) of the 1995 Act as the same is saved under

Section 112(2) of the 1995 Act. Before proceeding further, it is

apposite to take note of the impugned notification dated

15.11.2001 which reads as under:

SUPPLEMENT TO PART II OF THE ANDHRA PRADESH GAZETTE PUBLISHED BY AUTHORITY _______________________________________________________

No.46-A HYDERABAD, THURSDAY, NOVEMBER 15, 2001. _______________________________________________________ NOTIFICATIONS BY HEADS OF DEPARTMENTS, ETC.

***** REVENUE NOTIFICATIONS ***** ANDHRA PRADESH STATE WAKF BOARD

LIST OF WAKF PROPERTIES (REGISTERED AND UNREGISTERED) IN NARSAPUR AND SIDDIPET TALUKS OF MEDAK DISTRICT OF TELANGANA REGION SURVEYED UNDER SECTION 4(3) OF THE WAKF ACT, 1954 AND PUBLISHED UNDER SECTION 5(2) IBID.

Thus, it is evident that the notification under Section 5(2)

has been issued under the 1954 Act.

18. The Supreme Court in D.C.Bhatia (supra) has held that

the provisions of the repealed statute cannot be relied upon

after it has been repealed. It has further been held that what

has been acquired under the repealed act, cannot be

disturbed, but if any new or further step is needed to be taken

under the Act that cannot be taken even after the Act is

repealed. The aforesaid view has been reiterated with approval

by a three-Judge Bench of the Supreme Court in Manish

Kumar vs. Union of India 17 and it has been held that rights

which have accrued are saved unless taken away expressly. It

is well settled legal proposition that except the cases where the

proceedings were commenced, prosecuted and brought to a

finality before the repeal, no proceeding under the repealed

statute can be commenced or continued after the repeal (see

17 (2021) 5 SCC 1

Keshavan Madhava Menon vs. State of Bombay 18 and

Mohan Raj vs. Dimbeswari Saikia 19).

19. The notification in the instant case has not been issued

under Section 5(2) of the 1995 Act, but has been issued under

Section 5(2) of the 1954 Act. The 1954 Act has been repealed

and therefore, in view of well settled legal position referred to

in preceding paragraph, the powers under Section 5(2) of the

1954 Act cannot be invoked to issue the notification.

Therefore, the second issue is answered in the affirmative by

stating that the notification dated 15.11.2001 has been issued

under Section 5(2) of the 1954 Act and the same is, therefore,

nullity.

(iii) Whether the writ petition filed by the company

suffers from delay and laches?

20. It is trite law that extraordinary jurisdiction of this Court

under Article 226 of the Constitution of India is discretionary

in nature and question of delay and laches in all kinds of cases

would not disentitle a party to invoke the jurisdiction under

Article 226 of the Constitution of India. It is well settled legal

18 AIR 1951 SC 128 19 AIR 2007 SC 232

principle that if an order is a nullity, its validity could be set

up whenever and wherever it is sought to be enforced or relied

upon. It is equally well settled legal position that test while

ascertaining the delay, is not of physical running of time and

when circumstances justifying the conduct exists, the illegality

which is manifest cannot be sustained on the sole ground of

laches (see M/s.Dehri Rohtas Light Railway Company

Limited vs. District Board, Bhojpur 20). In Tukaram Kana

Joshi vs. Maharashtra Industrial Development

Corporation 21, the Supreme Court dealing with the issue of

delay in approaching the Court under Article 226 of the

Constitution of India has held as under:

13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the courts to exercise their powers under Article 226, nor is it that there can never be a case where the courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter

20 (1992) 2 SCC 598 21 (2013) 1 SCC 353

within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable. (Vide P.S. Sadasivaswamy v. State of T.N. [(1975) 1 SCC 152 : 1975 SCC (L&S) 22 : AIR 1974 SC 2271] , State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251] and Tridip Kumar Dingal v. State of W.B. [(2009) 1 SCC 768 : (2009) 2 SCC (L&S) 119] )

14. 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 laches. 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 other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. 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. (Vide Durga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769] , Collector (LA) v. Katiji [(1987) 2 SCC 107 : 1989 SCC (Tax) 172 : AIR 1987 SC 1353] , Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [(1992) 2 SCC 598 : AIR 1993 SC 802] , Dayal Singh v. Union of India [(2003) 2 SCC 593 : AIR 2003 SC 1140] and Shankara Coop. Housing

Society Ltd. v. M. Prabhakar [(2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56 : AIR 2011 SC 2161] .)

The principle laid down in Tukaram Kana Joshi (supra)

has been quoted with approval in Union of India vs.

N.Murugesan 22. Thus, the issue of delay has to be decided on

the basis of facts and circumstances of each case.

21. In the instant case, in reply to paragraphs 12 and 13 of

the affidavit filed in support of the writ petition, the Wakf

Board has taken an objection with regard to delay and laches.

The relevant extract of the aforesaid reply reads as under:

Since the period of one year has been elapsed it is for the Wakf Tribunal to adjudicate the suit challenging the notification on merits. The petitioner instead of approaching to Wakf Tribunal established under Section 83 of the Wakf Act, 1995 directly approached this Hon'ble Court under Article 226 of the Constitution of India after more than 14 years from the date of publication of Gazette on the ground of alleged violation of principles of natural justice which is hit by delay and latches, as such it is not open to the petitioner to invoke the extraordinary special original jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India after more than 14 years from the date of publication of Gazette, further the issues involved in the present case are disputed question of fact to be decided and proved at the appropriate forum, the Wakf Tribunal. As such, the petitioner has got alternative

22 (2022) 2 SCC 25

remedy under Section 83 of the Wakf Act, 1995, as held by the Hon'ble Supreme Court in Board of Wakf, West Bengal vs. Anis Fatima Begum [(2010) 14 SCC 588], as such the above writ petition is liable to be dismissed.

22. The company had purchased the subject lands in an

auction held on 26.12.2013 and 13.08.2014. The sale

certificates were also issued in favour of the company.

Thereupon, it initiated attempts to seek mutation of its name

in the revenue records and learnt about the notification dated

15.11.2001. Thereafter, the writ petition was filed on

05.11.2014. Therefore, in the facts and circumstances of the

case, we hold that the writ petition does not suffer from delay

and laches disentitling the petitioner to invoke the jurisdiction

under Article 226 of the Constitution of India. Accordingly, the

third issue is answered.

(iv) Whether the Wakf Tribunal is the only authority under

Section 6(1) of the Wakf Act, 1995 to examine the validity of

the impugned notification dated 15.11.2001 and the same

cannot be examined in a proceeding under Article 226 of the

Constitution of India?

23. Before proceeding further, it is apposite to take note of

Section 6 of the 1995 Act as it stood prior to Amendment by

Amendment Act No.27 of 2013 dated 01.11.2013.

6. Disputes regarding Wakfs:- (1) If any question arises whether a particular property specified as Wakf property in the list of Wakfs is wakf property or not or whether a Wakq specified in such list is a Shia Wakf or Sunni Wakf, the Board or the Mutawalli of the Wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final;

Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of Wakfs:

Explanation:- For the purposes of this section and section 7, the expression "any person interested therein", shall, in relation to any property specified as wakf property in the list of wakfs published after the commencement of this Act, shall include also every person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4.

(2) Not withstanding anything contained in sub-

section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit.

(3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him

in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.

(4) The list of Wakfs shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive.

(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court in that State in relation to any question referred to in sub-section (1).

24. Thus, it is evident that dispute whether or not property is

a wakf property in the list of wakfs and whether the same

belongs to Shia or Sunni wakf, the Board or the Mutawalli of

the wakf or any person interested therein may institute a suit

in a Tribunal for adjudication of the aforesaid question.

Section 6 has to be read with Section 3(k) of the Act which

defines the expression 'person interested in a wakf' and reads

as under:

3 (k) "person interested in a wakf" means any person who is entitled to receive any pecuniary or other benefit from the wakf and includes-

(i) any person who has a right to workship or to perform any religious rite in a mosque, idgah, imambara, dargah, khanqah, peerkhana and karbala, maqbara, graveyard or any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf;

(ii) the wakif and any descendant of the wakf and the Mutawalli;

25. Thus, if provisions of Section 6 and 3(k) of the Wakf Act,

1995, prior to its Amendment, are read in conjunction, it is

evident that a person interested in the wakf alone could have

resorted to the remedy under Section 6 of the 1995 Act.

However, subsequently by Amendment Act No.27 of 2013

dated 01.11.2013, the words 'any person interested' had been

substituted by 'any person aggrieved'. The Supreme Court in

Rashid Wali Beg (supra) dealt with the issue whether suit

seeking the relief of perpetual and mandatory injunction in

respect of a property admitted to be the wakf property before

the civil court is maintainable. The aforesaid issue was

answered in the negative and in paragraph 47 and 68, it was

held as under:

47. The upshot of the above discussion is that the basis of Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] now stands removed through Amendment Act 27 of 2013. In fact, when Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] was decided, Sections 6(1) and 7(1) enabled only three categories of persons to approach the Waqf Tribunal for relief. They are, (i) the Board; (ii) the mutawalli of the waqf; or (iii) any person

interested therein. However, the Explanation under Section 6(1) clarified that the expression "any person interested therein" shall include every person, who, though not interested in the waqf, is interested in the property.

But by Act 27 of 2013 the words, "any person interested"

were substituted by the words, "any person aggrieved", meaning thereby that even a non-Muslim is entitled to invoke the jurisdiction of the Tribunal. Due to the substitution of the words "any person aggrieved", Act 27 of 2013 has deleted the Explanation under 6(1). This amendment has also addressed the concern expressed in Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] (in para 21 of the SCC report) whether a non-

Muslim could be put to jeopardy by the bar of jurisdiction, merely because the property is included in the list of waqfs. We must point out at this stage that the Explanation under sub-section (1) of Section 6, as it stood at the time when Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] was decided, already took care of this contingency, but was omitted to be brought to the notice of this Court.

68. The dichotomy created in some decisions of this Court, between the properties which are admitted to be waqf properties and properties which are disputed to be so, is on account of the misapplication of the two limited questions in Sections 6(1) and 7(1) to the whole of the Act including Section 83. At the cost of repetition we should point out that Section 83(1) provides for the determination of any dispute, question or any other matter, (i) relating to a waqf and (ii) relating to a waqf property. This

prescription cannot be taken to have been curtailed or circumscribed by Sections 6(1) and 7(1), to come to the conclusion that the Tribunal will assume jurisdiction only when a property is disputed to be a waqf property.

26. The decision in Rashid Wali Beg (supra) was considered

by the Supreme Court in State of Andhra Pradesh (Now

State of Telangana vs. Andhra Pradesh State Wakf Board 23.

The relevant extract of paragraph 105 reads as under:

105. In Rashid Wali Beg, this Court examined all the previous judgments on the question as to whether any property is a wakf property or not is triable exclusively by the Wakf Tribunal but the judgments discussed therein pertained to the invocation of the jurisdiction of the Civil Court or of the Wakf Tribunal. None of the judgments dealt with the invocation of the jurisdiction of the writ court. Board of Wakf, West Bengal vs. Anis Fatma Begum ((2010) 14 SCC 588) is again not a judgment arising out of a writ petition filed before the High Court. It was a case of a suit filed before the Civil Court, though in para 7, there is an observation that all matters pertaining to wakf should be filed in the first instance before the Tribunal and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution. The observation made by this Court in respect of invocation of the jurisdiction of the writ court is clearly obiter as that was not the question arising for consideration.

Thus, it is evident that the decision of Supreme Court in

23 2022 SCC OnLine SC 159

Rashid Wali Beg (supra) does not deal with the invocation of

jurisdiction of a writ court.

27. However, the alternative remedy has been held by

Supreme Court not to operate as a bar in at least three

contingencies, namely (i) where the writ petition seeks

enforcement of any of the fundamental rights; (ii) where there

is failure of principles of natural justice; or (iii) where the

orders or proceedings are wholly without jurisdiction or the

vires of an Act is challenged (see Whirlpool Corporation vs.

Registrar of Trade Marks, Mumbai 24 and Harbanslal Sahnia

vs. Indian Oil Corporation 25). The Supreme Court in Radha

Krishan Industries vs. State of Himachal Pradesh 26, while

dealing with exercise of jurisdiction under Article 226 of the

Constitution, when an alternative remedy is available to a

party, held as under:

27. The principles of law which emerge are that:

27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.

24 (1998) 8 SCC 1 25 (2003) 2 SCC 107 26 (2021) 6 SCC 771

27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.

27.3. Exceptions to the rule of alternate remedy arise where: (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.

27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.

27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.

27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

The aforesaid view was reiterated with approval in

Maharashtra State Board of Wakfs (supra).

27. In the case in hand, the impugned notification dated

15.11.2001 is void as the same has been issued under the

provisions of the repealed Act. Therefore, the instant case falls

within the exceptions carved out by the Supreme Court in

Whirlpool Corporation (supra) and Harbanslal Sahnia

(supra) and the writ petition has rightly been entertained,

notwithstanding the availability of an alternative remedy.

Therefore, in the facts of the case, it is not necessary to

relegate the petitioner to alternative remedy. Accordingly, the

fourth issue is answered in the affirmative by stating that