M. Nazeer Pasha vs The Joint Collector,
2024 Latest Caselaw 757 Tel

Telangana High Court

M. Nazeer Pasha vs The Joint Collector, on 23 February, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

       HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

            WRIT PETITION No. 19536 OF 2013

ORDER:

Petitioner questions A.P. Gazette Notification No.

28-A, dated 13.07.2006 which included land in Survey Nos.95,

96, 97 and 98 at Sangala Village, Gadwal Mandal,

Mahabubnagar District as waqf property, as illegal.

Consequently, a direction is sought to the 1st respondent to

dispose of the pending Appeal in File No. F2/IA-35/2010 filed

by the 4th respondent against grant of Occupancy Rights

Certificate (ORC) granted by the 2nd respondent in respect of the

above land in favour of petitioner and his family members

without being influenced by the Gazette Notification.

2. Petitioner and his brothers claim to be the absolute

owners of the subject agriculture land. The land's historical

classification as Kyrathi Inam is documented in Khasra Pahani

1954-55 and Sethwar 1334 Fasli. Gadwal Samasthan initially

settled the land in favour of Abdul Khader, with subsequent sale

to Pasha's family in 1994. In response to the nature of the land

governed by the AP(TA) Abolition of Inams Act, 1955, Pasha and

his family approached the 2nd respondent for an ORC.

It is stated that the 2nd respondent, after thorough

inquiry and local inspection, on 19.02.2009 in file No. B / 5795

/ 2000 granted ORC in favour of petitioner and his family

members and the same was implemented in Revenue Records

by recording their names as pattadars and possessors.

While so, the 4th respondent claiming to be

Muthawalli of Dargah, filed an Appeal under Section 24(1) of the

Abolition of Inams Act, 1955. Relying on Gazette Notification No.

28-A dated 13.07.2006, the 3rd respondent notified the land as

Waqf Property. The 4th respondent seeks to annul the ORC

based on this Notification. It is further stated that no enquiry

was conducted by any authority as required under Sections

4(3) and 5(2) to include the above land in the list of Waqf.

It is asserted that the notification is illegal, against

natural justice and contravenes the 1954 and the 1955 Act.

Reference is made to legal precedents (W.P. No. 681/1997),

indicating that notifications issued without due procedure were

deemed illegal by the Hon'ble High Court. The Division Bench

in Writ Appeal No. 745 of 2002 upheld the Single Judge's order.

The Hon'ble Supreme Court dismissed the SLP against the

Division Bench's judgment dated 21.03.2011.

3. One Syed Yaqoob Mohiuddin, who claims to be the

Muthawalli of Dargah HZT Syed Shah Maroof Peer Quadri (RH)

and its attached property situated at Sangal Village, Gadwal

Mandal, Mahabubnagar District filed I.A.No. 1 of 2022 to

implead himself as the 5th respondent to the Writ Petition. It is

stated therein that himself and his brothers are absolute owners

of the land in an extent of Acs.27.09 guntas in subject survey

numbers at Sangala Village, Gadwal Mandal, Mahabubnagar

District. Originally, the nature of the above land is being

recorded as Kyrathi Inam in Khasra Pahani 1954-55 and also as

per Sethwar 1334 Fasli. The Village Sangala is a Jagir Village

under the Gadwal Samasthan and the said Samsthan have

settled the above land in favour of one Abdul Khader as Inam

land. After death of Abdul Khader, his grandsons namely Syed

Abdul Haq Auadri and Abdul Kareem Quadri sold the said Inam

land to petitioner and his family members in 1994.

It is stated that Munthakab No.70 of 1953 in file

No.H/4518/A of RDO, Gadwal, lands bearing Survey Nos.1011,

1035, 1039 of Gadwal Village and present subject lands bearing

Survey Nos. 95, 96, 97 and 98 of Sangala Village were

permanently endowed in favour of Dargh Hzt. Syed Shah Maroof

peer Quadri Rh. At Gadwal and in the said Munthakab it is

clearly mentioned that the said lands are conditional Inam. As

per Sethwar 1334 Fasli (1940 AD), subject lands are already

mutated in the name of Maroof peer sahib (i.e. Dargah Hzt.

Maroof peer Quadri) vide No.B/8176/61 of Tahsil Gadwal.

These documents clearly shows that the subject lands having

been endowed to Dargah, well prior to preparation of Khasra

Pahani 1954-55 and recorded as such in government record as

per Khasra Pahani 1954-55, the subject land are declared as

Waqf properties by the Commissioner of Waqfs appointed by the

State Government under the provisions of Waqf Act. The same is

notified as Waqf published in A.P. Gazette No.28-A, dated

13.07.2006, at Sl. No. 26030 Gadwal Taluk. It is a fact that

Dargah Maroof peer is a Waqf institution and subject lands are

endowed to the said Waqf institution and as per Section 51 of

the Waqf Act, 1995, alienation of waqf property is totally

prohibited and it alienating by way of gift, sale exchange or

mortgage are void and void ab-initio.

It is stated that the 4th respondent Mr. Syed Khaja

Wajiuddin Chisti expired on 30.05.2019 and prior to his death,

he had given NOC for appointment of the proposed respondent

as Muthawalli of said Dargah, accordingly, he was appointed as

such to Dargah Maroof peer (Rh) and its attached property total

admeasuring Acs.39.10 guntas in Survey Nos. 1011, 1038,

1039 admeasuring Acs.12.01 guntas and Survey Nos. 95 to 98

admeasuring Acs.27-09 guntas, total admeasuring Acs.39.10

guntas at Sangal Village, Gadwal Mandal, Mahabubnagar

District. Therefore, the proposed respondent is a necessary

party to this Writ Petition. It is further stated that this party

filed Petition before the 2nd respondent Collector to implead

himself to prosecute the Appeal.

It is the case of this proposed party that in 1954-

1955 Kasra and even prior to the same, his ancestral names

have been recorded as owners of the land as reflected in Kasra

Pahani from 1954-1955 onwards as Kidmat Inam. Thereupon

after being in possession continuously for more than six

decades for land admeasuring Acs.39.10 guntas at Sangal

Village, the said land was notified as Waqf vide Gazette

Notification No.28-A, dated 13.07.2006. It is stated that the

Inspector Auditor Waqfs, Mahabubnagar filed Form-I

declaration dated 21.02.2004 before the Revenue Divisional

Officer, Gadwal enclosing the Waqf record of the above Wakf

Institution for issuance of ORC in the name of Dargah Hzt.

Maroof Peer and its attached Inam lands bearing Survey Nos.

1011, 1038, 1039 Gadwal and 95 to 98 total admeasuring

Acs. 39.10 guntas situated at Sangal Village in the light of Inam

Abolition of Amendment Act and also the 3rd respondent i.e.

Chief Executive Officer, A.P. State Waqf Board, Hyderabad also

addressed letters to the Revenue Divisional Officer, Gadwal with

a request to issue ORC in the name of Waqf Institution.

It is stated that the Revenue Divisional Officer,

Gadwal issued ORC in favour of petitioner and his deceased

brother M. Maqbool Pasha who expired on 06.01.2001 i.e.,

(much prior to grant of ORC) without issuing any notice to the

3rd respondent Waqf Board or the 4th respondent who was the

then Muthawalli. It is further submitted that Notification

declaring the land in Survey Nos. 1011, 1038, 1039

admeasuring Acs.12.01 guntas and Survey Nos. 95 to 98

admeasuring Acs.27.09 guntas, total admeasuring Acs.39.10

guntas at Sangal Village vide A.P. Gazette No.28-A dated

13.07.2006 Serial Number 26030 Gadwal (Tq), is prior to grant

of ORC to petitioner and his deceased brother which was on

2009 and it was incumbent on the Tahsildar who granted ORC

to notify the Waqf and Muthawalli regarding the proposed grant

of ORC to petitioner and his deceased brother and not doing so

constituted violation of natural justice. This coupled with the

fact that ORC was given to Petitioner and his deceased brother

made the grant of ORC illegal and liable to be set aside.

It is stated that the 4th respondent made all the

above said submissions in Appeal before the 2nd respondent

Collector for cancellation of petitioner ORC and the said 2nd

respondent granted stay of operation of the ORC which order is

still in operation. Petitioner in the present Writ Petition in an

effort to get over the proceeding before the Collector and avoid

appearing before the said Collector in the Appeal, filed the

present Writ Petition for setting aside Gazette Notification and

obtained stay of appeal with sole object of avoiding appearance

in the Appeal. The ground taken in Writ Petition which was

without any basis that the Gazette notification itself be

cancelled and on that baseless ground itself, stay was obtained

on the Appeal pending before the Collector which a separate

proceeding and which has nothing to do with the validity of the

Waqf notification. It is further stated that obtaining ORC before

the Tahsildar was fraudulent as notices were not given either to

the Waqf or Muthawalli. In spite of the fact that Gazette

Notification (2006) is prior to grant of ORC (2009).

It is stated further that proceeding before the

Collector challenging the ORC is a separate and distinct

proceeding and already resulted in grant of a stay against the

operation of the ORC. Petitioner in effort to subvert that

proceeding filed the present writ petition with sole object of

stalling appeal proceeding before the 2nd respondent Collector

on baseless ground of challenge to Gazette notification notifying

the said property as a Waqf. Not only Gazette is prior to

Petitioner ORC in the present writ petition, the said challenge is

without any basis and done to only stop proceeding before the

Collectrate. A challenge to Waqf notification published in the

Gazette itself may not result in suspension of any proceedings

before the Revenue Authorities concerning the grant of ORC etc.

to the 3rd party. If that were so, any 3rd party can file a writ

petition challenging the Gazette Notification declaring the

property as Waqf and then seek for suspension of all pending

proceedings before the Revenue Authority concerning the said

land. Therefore, stay itself may be vacated.

It is further stated that one person, who was the

beneficiary of ORC along with petitioner, expired on 06.01.2001

i.e., M. Maqbool Pasha, even before grant of ORC which was on

19.02.2009. Hence, prima facie the very grant of ORC was

fraudulent and deserves to be set aside. At any rate, the stay

had been granted which has resulted in suspension of a

pending proceeding before the 2nd respondent Collector Revenue

Authority for the past eight years. The same may not be stalled

merely because there is challenge to a Waqf notification.

It is submitted that petitioner cited Writ Appeal No.

745 of 2002 and Writ Petition No.12275 of 1993 which is wholly

inapplicable to the facts of the present case. In Writ Appeal, this

Court held that when ORC precedes the date of declaration of

Waqf under Gazette, in such case, the occupancy right holders

have to necessarily be given notices before declaration of said

property as Waqf property and not doing so violates principles of

natural justice. In the instant case, as stated hereinabove,

declaration of above said property as Waqf property vide Gazette

Notification took place vide A.P. Gazette No. 28-A dated

13.07.2006, at Sl. No.26030 Gadwal Taluk, whereas the ORC

vide File No. B/5795/2000 dated 19.02.2009 was after

declaration of property as Waqf property. Hence, as per the facts

of the present case, declaration of property as Waqf property

preceded grant of ORC by three years and hence, the ratio of the

decision of this Hon'ble Court in Writ Appeal and Writ Petition

No. 12275 of 1993 are wholly inapplicable to the facts of the

present case since in those cases, grant of ORC preceded that of

declaration of property. It is finally stated that by virtue of stay

granted in 2013, Petitioner is interfering with possession of the

proposed respondent at the above said Dargah/Waqf land who

is Muthawalli appointed to the said Dargah from exercising any

rights over the said land and this is resulting in constant

friction between petitioner and proposed party. Hence, said stay

petition may be vacated. Further, petitioner illegally and

fraudulently sought to sell the said lands and done so to certain

third parties in an extent of Acs.08.00 in Survey No.No.95 of

Sangal Village. Having come to the notice of the 2nd respondent

who has informed the Tahsildar that stay having been granted

in the said Appeal against ORC, any sale having taken place

thereafter is illegal and invalid and directed the Tahsildar to

take immediate action with regard to the same.

4. The proposed party Syed Yaqoob Mohiuddin was

impleaded as the 5th respondent by order dated 01.09.2022 in

I.A.No. 1 of 2022.

5. The 3rd respondent - Chief Executive Officer of the

Waqf Board filed the counter-affidavit stating that as per

Munthakab No. 70 of 1953 in File No. H/4518/A of RDO,

Gadwal, lands bearing Survey Nos. 1011, 1035, 1039 of Gadwal

Village and present subject lands bearing Survey Nos. 95, 96,

97 and 98 of Sangai Village were permanently endowed in

favour of Dargah Hzt. Syed Shah Maroof Peer Quadn Rh at

Gadwal and in the said Munthakab, it is clearly mentioned that

lands are conditional Inam as per Sethwar 1334 Fasli (1940 AD)

the subject lands are already mutated in the name of Maroof

Peer Sahib (ie Dargah Hzt. Maroof peer Quadri) vide No.

B/8176/61. These documents clearly show that subject lands

have been endowed to Dargah, well prior to preparation of

Khasra Pahani 1954-55 and recorded as such in the Govt

record. As per the Khasra Pahani 1954-55 Sri Syed Mohammed

Khader sab s/o Syed Abdul Khadar Sab was the Inamdar and

Moulim Abdul Rahman sab R/o Gadwal was the cultivator on

yearly lease for the period from 1360 to 1364 Fasli.

Subsequently, the subject lands are recorded as Waqf properties

as per survey conducted by the Commissioner of Waqfs under

the provisions of the Act. The same is notified as waqf published

in A.P. Gazette No. 28-A, dated 13.07.2006, at Sl. No. 26030

Gadwal Taluk belongs to Dargah Hzt. Maroof Peer Quadri Rh.

situated at Gadwal village. It is a fact that Dargah Maroof Peer

is a Waqf institution and subject lands are endowed to the said

Waqf institution and as per Section 51, these lands cannot be

alienated, gifted, sold, exchanged or mortgaged and subject

lands are meant for the benefit of religious institution. Further,

it is stated that possession of person over such land as on the

crucial date of vesting i.e. 01.11.1973 would only entitle him to

claim ORC. As per the Pahani for 1973-74, petitioner or his

family members was in possession over the subject lands. As

per the report of Tahsildar, Gadwal No. C/8749/2008, dated

20.11.2008 in which he submitted a report to the RDO, Gadwal

that petitioner and his family members came into possession of

suit lands by virtue of unregistered sale deed dated 20.04.1999

only, it gives to understand that they were not in possession as

on 01.11.1973. After 20.07.1955/01.11.1973 when Inams were

abolished and vested in government, any sale is void, thus they

had no right to claim ORC under Section 4(1) of the Inams

Abolition Act, but the RDO, Gadwal issued ORC without

speaking order in favour of petitioner and allegedly a dead

person namely M. Maqbool Pasha who is the brother of

petitioner. The RDO gravely erred in ignoring to pass a reasoned

order before the grant of ORC which is mandatory.

The Inspector Auditor Waqfs, Mahabubnagar filed

Form-I declaration dated 21.02.2004 before the RDO Gadwal

duly enclosing Waqf record of the above waqf institution for

issuing ORC in the name of Dargah Hzt. Maroof Peer and its

attached Inam lands bearing Survey Nos. 1011, 1038, 1039 and

Survey Nos. 95, to 98 total extent of Acs.39.10 guntas situated

at Sangala village, Gadwal Mandal in the light of Inam Abolition

(Amendment) Act and the 3rd respondent ie. Chief Executive

Officer also addressed letters to the RDO Gadwal with a request

to issue ORC in the name of Waqf Institution. The President,

District Waqf Committee, Mahabubnagar also submitted list of

waqf properties mandal-wise of Gadwal Division to the RDO

Gadwal with a request not to issue ORC in the name of any

individual vide letter dated 03.04.2007 but the RDO, Gadwal

issued ORC in favour of Sri M.Nazeer Pasha s/o Subhan Miyan.

Petitioner and his deceased brother late M. Maqbool Pasha in

File No. B/5795/2000 dated 19.02.2009 ignoring all the

relevant material on record and facts and also without issuing

any notice to Wakf Board. It is further stated that petitioner and

his family members have no right over the lands in question and

they were not in possession of the said lands either on the

notified date or any other date under any capacity and mere

recording their names, if any in cultivation column of the said

lands does not give any right to them. It is settled law that any

order or decree in favour of dead person can never be operated

upon, thus, the ORC in favour of deceased pasha is void. In

such an event, the RDO should have given a speaking and

reasoned order as to how he arrived at such conclusion that

lands are non-Waqf. In this regard, the 4th respondent filed an

Appeal before the Joint Collector, Mahabubnagar for

cancellation of said ORC wherein stay of operation of ORC was

granted till disposal of the Appeal, but petitioner illegally sold

the subject land bearing Survey No. 95 to an extent of Acs. 8.00

guntas to other persons vide registered document dated

02.02.2012 and the stay order of the Joint Collector are in force.

It is stated that petitioner has not made out any

case by stating that the 1st respondent is being influenced by

the alleged impugned Gazette notification. The Appeal filed by

the 4th respondent is pending with the 1st respondent and

petitioner is a party to the said Appeal and instead of contesting

the said Appeal, he approached this Court invoking the

extraordinary jurisdiction of this Court under Article 226 of the

Constitution of India. Therefore, the present Writ Petition is

liable to be dismissed on this ground alone.

6. In the additional counter filed by the State Waqf

Board, it is asserted that the Waqf Act, 1995, being a Central

enactment, defines 'Official Gazette' or 'Gazette' as the 'Gazette

of India or the Official Gazette of a state.' The respondent

emphasizes that the Gazette serves as an official mode of notice

to the general public regarding existence of waqf institutions.

The respondent underscores the significance of the gazette as

an official communication document for informing the public

about the renowned Sufi Saint Syed Shah Maroof Peer Quadri's

Dargah, also known as Maroof Peeran. It is argued that the

legislative intent behind the Waqf Act was to establish a

statutory process for the administration of Auqaf. This

respondent further explains the process leading to delayed

publication of gazette notification due to removal of monetary

impediments by Amendment Act 27 of 2013. It emphasized the

waiver of cost of survey by the State Government under Section

8 of the Act, which led to delayed publication of gazette

notification. The respondent argues that petitioner's claim,

seeking a mandamus, is erroneous, especially after the

Amendment Act 27 of 2013.

Respondent refutes the petitioner's attempt to

quash the gazette notification for the subject waqf lands,

emphasizing that properties were legally surveyed and notified

under the Waqf Act of 1954. As per the file bearing number

1157/CW.III/69, of the Survey Commissioner Waqf annexed as

remarks to the survey form bearing number 13 and that also

being that of the survey commissioner waqf, the subject waqf

lands are falling under survey Nos. 1011, 1038, 1039

admeasuring Acs.11.39 guntas. Respondent quotes relevant

Sections of the 1995 Act, defining 'beneficiary' and 'Waqf.' It is

argued that petitioner's attempt to challenge the gazette

notification, stressing the legality and conclusiveness of the

survey and notification process. Under Section 3 (a),

'beneficiary' means a person or object for whose benefit a waqf

is created and includes religious, pious and charitable objects

and any other objects of public utility sanctioned by the Muslim

law. Under Section 3(r), 'Waqf' means permanent dedication by

any person, of any movable or immovable property for any

purpose recognized by the Muslim law as pious, religious or

charitable. Under Section 3(r) (iii) "grants" including mashrut-

ul-khidmat for any purpose recognised by the muslim law as

pious, religious or charitable.

The respondent details the quasi-judicial exercise

conducted by Survey Commissioners of Auqaf, independent

authorities appointed by the State Government. The respondent

highlights the submission of survey reports, scrutinization, and

subsequent publication in the gazette as per the established

legal procedure. Now adverts to the statutory Quasi Judicial

exercise conducted by the Survey Commissioners of Auqaf who

had been being independent authorities appointed under

section 3 (p) "Survey Commissioner" means the Survey

commissioner of Waqf appointed under sub-section (1) of

section 4 and includes any Additional or Assistant Survey

Commissioners of Auqaf under sub-Section (2) of Section 4 by

the then State Government who had conducted the survey of

innumerable Auqaf properties in the erstwhile composite State

in adherence to the due procedure contemplated as per law and

had thereafter submitted Survey Commissioners Report/s to the

State Government identifying more than forty eight thousand of

Auqaf properties that had been dedicated to various subject

waqf institution/s previously by the donors and also included

the erstwhile rulers of the Qutub Shahi and Asif Jahi Dynasties.

The respondent emphasizes that the gazette served

as official notice to the public about the existence of waqf

properties. It is requested to consider the prevalent situation

during the post-independence era, particularly the limited

modes of communication in semi-urban and rural India. The

respondent argues that the gazette, newspapers, and local beat

of drums were valid means of communication, and the survey

process was legally concluded over three decades ago.

The respondent draws attention to the

infrastructure scenario in India during 1960s and 1970s,

emphasizing open lands, an agrarian economy, and limited

literacy rates. The respondent asserts that the prevalent

communication methods, such as newspapers and beat of

drums, were valid and appropriate during that era. Respondent

pleads for court's consideration of the historical context and

prevailing conditions during post-independence era. The need to

evaluate the case based on the India of 1960s is emphaized,

stressing the rural and semi-urban setting, limited

communication infrastructure, and validity of the methods

employed for communication.

Respondent submits that the subject properties in

rural India, primarily situated in vicinities inhabited by farmers,

were notified under the Waqf Act of 1954. The local revenue

personnel, with the assistance of the concerned grassroots

officials, validly carried out the notification process, utilizing

methods like beat of drums and notice affixing, as the Waqf Act

did not explicitly specify modes of service. Addressing the

citation of Emperor v. Leslie Gwilt (1944) 47 Bom. L.R., the

respondent contends that illiterate individuals, like Mahar

community may not comprehend detailed orders, justifying the

use of alternative means for public notice, as reflected in the

notification procedures carried out. It is emphasized that Survey

Commissioners of Waqf, appointed under the Waqf Act 1995,

performed quasi-judicial and official acts in line with the

statute. The survey forms, bearing signatures of local

authorities, indicate due procedure in service of notices. The

respondent cites Shiv Sagar Tiwari v. Union of India 1

highlighting that publication in newspapers constitutes

sufficient notice. This respondent acknowledges the Inam lands

burdened with service attached to Dargha of Syed Shah Maroof

Peer Quadri. The Inam proceedings confer the original grant and

entitlement to the Sajjadanashin, conditioned for service to the

waqf institution.

The respondent argues that petitioner erroneously

seeks annulment of conditional service Inam through quashing

of gazette notification, intertwining both issues. The respondent

highlights that this contention contradicts the objectives

restored by the Amendment Act No. 19 of 1994.

(1997) 1 SCC 444

The respondent disputes petitioner's entitlement to

Auqaf properties under the amended laws and asserts that the

writ petition is legally untenable. It is argued that writ petition

is time-barred, referencing the one-year limitation period

imposed by the amended Section 6 of the Act. The respondent

asserts that principles of natural justice cannot be invoked to

contest the survey conducted in the 1962-1974 period. In para

29, the respondent highlights the financial constraints leading

to publication delays but asserts that this does not impact the

validity of the survey or subsequent actions. The respondent

disputes the petitioner's contention of erroneous

misinterpretation of the law and emphasizes the statutory

amendments that render the instant writ petition not

maintainable. He relied on Lal Shah Baba Dargha Trust v

Magnum Developers 2, the relevant portion extracted as

hereunder for convenience of perusal

" Even by the 2013 amendment in Section 85 of the Act, they have also ousted the jurisdiction of the revenue court or any other authorities along with the civil court. Meaning thereby the legislatures wanted to make sure that no authorities apart from the Tribunal constituted under Section 83 of the Act shall determine any dispute, question or other matter relating to a waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property under this Act.

AIR 2016 SC 318

Under section 85 of the Waqf Act 1995 - Bar of jurisdiction of civil courts - No suit or other legal proceeding shall lie in any civil court, revenue court and any other authority in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal.

"107. Act 36 of 1963 not to apply for recovery of wakf properties.--- Nothing contained in the Limitation Act, 1963 shall apply to any suit forpossession of immovable property comprised in any wakf or for possession of any interest in such property."

Section 6 Disputes regarding Waqf [Auqaf1, The Wakf Act, 1995 (1) If any question arises whether a particular property specified as wakf property in the list of Auqaf is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person aggrieved 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:

The respondent cites the Full Bench judgment in

Writ Appeals, asserting that existence of waqf properties has

been established for five centuries. Relevance of judgments

relied upon by the writ petitioner, emphasizing the amendment

to Section 6 of the Waqf Act 1995 is disputed. The respondent

cites the judgment in Sayyed Ali v. A. P. Waqf Board,

Hyderabad 3, emphasizing the permanent dedication of waqf

properties. The judgment in Faqruddin v. Tajuddin 4

underlining that revenue authorities cannot decide questions of

title is relied.

(1998) 2 SCC 642

(2008) 8 SCC 12,

7. Petitioner filed reply-affidavits to the counter filed

by the 3rd respondent Wakf Board President, Mahabubnagar. In

the letter dated 10.02.2009, it is clarified that these lands were

erroneously listed as waqf properties and were subsequently

removed from the list by order of the Hon'ble High Court. This

correction was duly reflected in the Wakf register. Despite this,

the present Inspector of Wakf resumed claiming the land to be

Wakf property, contradicting the earlier findings and causing

unwarranted disputes. According to Khasra 1954-55 and

Sethwar 1314 Fasli, the mentioned lands are recorded as

Khairathi Inam Lands, not waqf properties. The Revenue

Divisional Officer granted Occupancy Right Certificates (ORC) in

file No. B/5795/2000, dated 19.02.2009, after thorough

investigation, however, inclusion of these lands in Gazette

Notification dated 13.07.2006, without proper inquiry as

mandated by Sections 4 & 5 of the Wakf Act, 1995, casts doubt

on the integrity of the process. The 1st respondent openly

declared his intent to adhere to the Gazette notification during

the appeal, potentially compromising the fairness of the

proceedings. Citing the judgment in B. Goura Reddy v.

Government of Andhra Pradesh 5, the counter-affidavit argues

that any Gazette notification including lands as Wakf properties

AIR 2002 AP 331,

without a proper inquiry is subject to being set aside. The

Hon'ble Division Bench's order on Writ Appeal No. 745/2002,

dated 21-03-2011, further supports this stance. The counter-

affidavit contends that the impugned Gazette notification, which

inaccurately designates the private Inam land as Wakf property,

should be nullified, urging the 1st respondent to re-evaluate the

Appeal impartially, considering evidence submitted by the

petitioner. Acknowledging an inadvertent error in filing Writ

Petition along with ORC granted to petitioner's brother, it is

clarified that ORC for both himself and his brothers was issued

in a common file No. B/5795/2000 dated 19.02.2000. Petitioner

contends that inclusion of their land in Wakf Notification lacked

proper inquiry by the Enquiry Officer, as mandated by Sections

4 and 5 of the Wakf Act, 1995. Petitioner emphasizes the

absence of any conducted enquiry, asserting that the impugned

notification is illegal, unlawful, and violates the principles of

natural justice. Petitioner highlights alignment with the

judgment in Goura Reddy case, confirmed by the Division

Bench and dismissed by the Supreme Court, establishing the

illegality of including their land in the notification.

8. Heard Sri M. Damodar Reddy, learned counsel for

petitioner, Sri Ashutosh Balchandra Joshi, learned Standing

Counsel for Waqf Board and Sri B. Mayur Reddy, learned

counsel for the 5th respondent.

9. After hearing learned counsel for petitioner as well

as learned Standing Counsel for Waqf Board, perusing the

judgments of the Hon'ble Supreme Court as well as this Court,

it is to be seen that the 4th respondent filed Appeal before the

District Collector under Section 24(1) of the Inams Abolition Act,

1995 against the order dated 19.02.2004 on the file of the Sub-

Collector, Gadwal. The prayer in the Writ Petition is two-fold: 1)

to declare the gazette as illegal, unlawful and 2) direct the

respondents to dispose of the pending Appeal without being

influenced by the Gazette Notification. If this Court accepts the

first prayer, it is nothing but dismissing the Appeal filed by the

4th respondent at the threshold.

10. Keeping in view the same, this Court is not inclined

to pass such an order. The Writ Petition is therefore, dismissed.

However, liberty is given to petitioner to raise all objections and

grounds raised in this Writ Petition before the Appellate

Authority. It is needless to say that the 4th respondent shall

dispose of the Appeal within a period of eight weeks from the

date of receipt of a copy of this order, on merits, uninfluenced

by the conclusion arrived at in this Writ Petition. No costs.

11. Consequently, the miscellaneous Applications, if

any shall stand closed.

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NAGESH BHEEMAPAKA, J 23rd February 2024

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