B. Shanker, S/O. Late B. Krishna ... vs A.P State Wakf Board
2023 Latest Caselaw 3839 Tel

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

                   WRIT APPEAL No.664 of 2012

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

      Mr. Vedula Srinivas, learned Senior Counsel for the

appellant.


2.    This intra court appeal emanates from the order dated

25.04.2012 of the learned Single Judge by which W.P.No.11788

of 2012 preferred by the appellant has been disposed of with

liberty to the appellant to approach the Andhra Pradesh Wakf

Tribunal.


3.    Facts

giving rise to filing of this appeal briefly stated are

that the appellant claims to have purchased Ac.3.29 guntas of

land situated in Khalsa Ibrahimpatnam Village, Ibrahimpatnam

Mandal, Ranga Reddy District vide registered sale deed dated

22.03.2004. Notification dated 17.07.2008 was issued by way of

addendum to earlier notification dated 16.02.1989 by which land

belonging to the 3rd respondent - Agha Mehdi Ali Mutavalli

Dargah Hazarath Peeram Hussain of Ibrahimpatnam Village was ::2::

declared to be wakf property and an order dated 06.02.2012

passed by the Revenue Divisional Officer granting occupancy

rights certificate in favour of the 3rd respondent insofar it

pertains to land bearing Sy.No.11 of Ibrahimpatnam Village was

set aside. The appellant thereupon challenged the notification

dated 17.07.2008, which was issued by way of addendum to

earlier notification dated 16.02.1989 as well as order dated

06.02.2012 issued by the Revenue Divisional Officer in the writ

petition.

4. The learned Single Judge by an order dated 25.04.2012

inter alia held that the law relating to Wakfs is a special codified

law and the Supreme Court in Board of Wakf, West Bengal vs.

Anis Fatma Begum 1 has cautioned the High Courts from

entertaining the disputes relating to Wakfs, which include wakf

property, straightaway under Article 226 of the Constitution of

India. Accordingly, the writ petition preferred by the appellant

was dismissed. In the aforesaid factual background, this intra

court appeal has been filed.

(2010) 14 SCC 588 ::3::

5. Learned Senior Counsel for the appellant while inviting the

attention of this Court to the order dated 20.06.2011 passed by

a Division Bench of this Court in W.P.No.989 of 2007 has

pointed out that whenever any property is declared as wakf

property, a notice to the interested person has to be issued. It is

further submitted that in the instant case before issuing the

impugned notification dated 17.07.2008, no notice was issued to

the appellant and the same was issued in violation of the law

laid down by a Division Bench of this Court and is ab initio void.

It is therefore contended that the writ petition before this Court

under Article 226 of the Constitution of India is maintainable. It

is also urged that the learned Single Judge ought to have

appreciated that the appellant has assailed the validity of order

dated 06.02.2012 by which occupancy rights certificate was

issued in favour of the 3rd respondent and the aforesaid order

could not have been challenged by the appellant before the Wakf

Tribunal.

6. We have considered the submissions made by the learned

Senior Counsel for the appellant and have perused the record.

::4::

7. Notification dated 17.07.2008, which was issued by way of

addendum to the earlier notification dated 16.02.1989, has been

issued without notice to the appellant. Therefore, the same was

passed in violation of the principles of natural justice. Supreme

Court in Whirlpool Corporation vs. Registrar of Trade Marks,

Mumbai and others 2, which has been reiterated by the Supreme

Court in Godrej Sara Lee Ltd. Vs. The Excise and Taxation

Officer-cum-Assessing Authority & Ors., 3 has carved out the

following exceptions to the rule of availability of alternative

remedy, namely, (1) where the order is passed in violation of

principles of natural justice; (2) where the vires of a provision is

challenged; and (3) where the order is per se without jurisdiction.

8. In the instant case, the learned Single Judge ought to have

appreciated that the appellant could not have been relegated to

avail the remedy before the Wakf Tribunal. In any case, the

learned Single Judge ought to have appreciated the validity of

the order dated 06.02.2012 which needs examination and the

appellant could not have challenged the order dated 06.02.2012

before the Wakf Tribunal. However, the learned Single Judge

(1998) 8 SCC 1

AIR 2023 SC 781 ::5::

has failed to appreciate the aforesaid aspect of the matter. The

impugned order is therefore set aside. Let the writ petition be

listed before the learned Single Judge. The learned Single Judge

is requested to deal with the writ petition on merits.

9. Accordingly, the writ appeal is allowed. There shall be no

order as to costs.

As a sequel, miscellaneous petitions, pending if any, stand

closed.

____________________________ ALOK ARADHE, CJ

____________________________ N.V.SHRAVAN KUMAR, J

Date: 10.11.2023 ES