Nawabuddin vs The Chief Executive Officer,
2024 Latest Caselaw 759 Tel

Telangana High Court

Nawabuddin vs The Chief Executive Officer, on 23 February, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

       HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

            WRIT PETITION No. 13000 OF 2015

ORDER:

Petitioners seek to declare inclusion of agricultural

lands in Survey Nos. 45 and 46, admeasuring Acs.2.36 guntas

and Acs.13.17 guntas respectively situated in Bela Village and

Mandal, Adilabad District in A.P Gazette Notification dated

04.01.1990 issued by the 1st respondent without due process of

law and without following the mandatory provisions of Sections

4 to 6 of the Waqf Act, 1995 as illegal, arbitrary, violative of

Articles 14, 21, 300-A and 31-A of the Constitution of India and

against Sections 4 and 5 of the Act and consequently, to set

aside the said Gazette Notification dated 04.01.1990.

2. The subject land was originally granted in Fasli

1307 to Ameenuddin, who is the great-grandfather of

petitioners, as a Qauzaith qauzi inam. After Ameenuddin's

death, ownership of the land passed on to the grandfather of

petitioners namely Azeezuddin. Following Azeezuddin's demise,

Abdul Ghani, father of petitioners rightfully inherited the land.

Upon passing of Abdul Ghani, petitioners, being the legitimate

successors, became pattedars and possessors of the suit land

and they have been lawfully enjoying the rights since then.

While so, on 19.02.2007, some persons belonging to

Masjid-Bela claimed that the said property is Waqf property and

tried to interfere with the peaceful possession and enjoyment of

the petitioners' land. It is stated that petitioners came to know

that subject land was wrongfully notified as waqf properties

through the impugned Gazette Notification during the course of

proceedings of O.S.No. 53 of 2007.

On 01-03-2007, petitioners filed O.S. No. 53 of

2007 in the Court of Junior Civil Judge, Adilabad against

Respondents 1 to 4 for pereptual injunction. On 09.10.2014, the

suit was dismissed on the ground that petitioners do not confer

any right over the suit schedule property and subject land

belongs to Waqf Board. Against the said order, A.S.No. 39 of

2014 was filed before the Family Court-cum-IV Additional

District Judge, Adilabad, wherein vide judgment dated 31-12-

2014, the decree and judgment dated 09.10.2014 was set aside,

granting perpetual junction restraining respondents, their men,

labourers, successors, agents and persons-in-interest from

interfering with the peaceful possession and enjoyment of the

subject land.

Petitioners assert their rightful ownership of the

subject land, which has been in their possession and that of

their family for over 60 years. At no juncture did they transfer

the land to any Waqf Institutions. They are not in the know of

the Gazette Notification till they filed the suit, as there was no

survey conducted by the Commissioner of Waqf and no notice

was served regarding inclusion of subject land in the

publication. According to petitioners, Notification published in

the Gazette dated 04.01.1990 is invalid and not binding on

petitioners for the following reasons:

1) It is in violation of the procedure laid down in

Sections 4 and 5 of the 1995 Act for preliminary survey of

auqaf. There is no valid report of Survey Commissioner on the

subject land which was allegedly mentioned in Gazette

Notification and the report lacks specific mention of the

boundaries of the subject land. Mere filling of columns would

not amount to report of the Survey Commissioner so as to bind

petitioners. Without the valid report, subject land cannot be

added to waqf property. The 1st respondent contravened Section

4(5) of the Act, as there is no valid Waqf deed to substantiate

the origin, nature, and objectives of the waqf.

2) Petitioners have never transferred rights over the

subject land to any waqf institutions. Further, the 1st

respondent failed to produce any evidence supporting lawful

transfer of land to waqf institutions. There is no mutawalli

appointed for administration of subject land. They have not

followed the due procedure while receiving the grant in favour of

waqf institutions and its registration as is enunciated under

Sections 36 and 37 of the Act.

It is stated that petitioners are lawful owners of

subject land and have been continuously enjoying the rights

and possession conferred upon it. Pattadar passbooks provide

evidence of their ownership and possession. Despite the subject

land being allegedly added to Gazette, respondents have not

taken any steps to take possession or to mutate the property in

the name of the wakf institution, thus failing to establish its

ownership of Masjid-Bela over the subject land. Neither

pattadar passbooks nor any other document indicates transfer

of land to waqf, affirming transfer of ownership of property to

Masjid - Bela. Petitioners have drawn the attention of this Court

to the following details:

Pattedar Passbook Details Year Pattedar Possessor 1953-1954 Ameenuddin Azeezuddin Khazi 1968-1969 Abdul Ghani Azeezuddin Khazi 1969-1970 Abdul Ghani Azeezuddin Khazi 1970-1971 Abdul Ghani Azeezuddin Khazi 2001-2002 Nawabuddin Nawabuddin 2003-2004 Nawabuddin Zaheeruddin & Nawabuddin 2004-2005 Nawabuddin Nawabuddin 2005-2006 Nawabuddin Nawabuddin & Zaheeruddin 2005-2006 Nawabuddin Nawabuddin & Zaheeruddin 2006-2007 Nawabuddin Zaheeruddin & Nawabuddin

Petitioners contend that clause in Section 6 applies

only when Gazette is legal and due procedure, including

surveying, reporting, and publishing, is conducted in

accordance with law. In the context of the present case, where

the petitioners challenge the legality of the Gazette Notification

dated 04.01.1990, Section 6 does not impede the cause of

action put forth in this Writ Petition. The limitation under

Section 6(1) of the Act does not disentitle petitioners from

seeking remedy under Article 226 of the Constitution of India.

Further, Section 83 of the Waqf Act, 1995 does not impose a bar

on filing this Writ Petition to challenge the impugned Gazette

Notification. As per the law laid down by this Hon'ble Court and

the Hon'ble Apex Court, petitioners shall not be compelled to

pursue the remedy under Section 83 of the Wakf Act before the

Wakf Tribunal.

Sri Dammalapati Srinivas, learned Senior Counsel

representing Sri S. Chandra Sekhar and Sri P.Sasidhar Reddy

relies on the judgment of this Court in B. Gowra Reddy v.

Govt. of A.P 1 and contends that validity of Gazette Notification

is in question when due procedure according to law is not

followed. Another judgment relied on by the learned Senior

Counsel is Telangana State Wakf Board Vs. L. Srinivasa

Reddy 2 . He contends that mere existence of an alternative

remedy will not by itself take away the powers of the High Court

AIR 2002 A.P. 313

2021 SCC Online TS 1449

under Article 226 of the Constitution to exercise its power to

review the decision made by the quasi-judicial authority.

3. Heard Sri Mohd. Ismail, learned Standing Counsel

for Waqf Board.

4. From a perusal of the material on record, it is

discernible that petitioners assert rightful ownership of the

subject land having been in possession for over 60 years and

never transferring it to any Waqf Institutions. Their main

grievance is that they became aware of Gazette Notification

dated 04.01.1990 only in 2007, as no survey was conducted or

notice was served by the 1st respondent. Petitioners claim that

Notification is invalid due to violation of Sections 4 and 5 of the

1995 Act and lacks a valid report from the Survey

Commissioner specifying the subject land's boundaries. The 1st

respondent failed to produce a valid Waqf deed to establish the

origin and they did not take steps to mutate the property in the

name of Waqf Board, whereas the pattaadar passbooks of

petitioners serve as evidence of their ownership.

5. In B. Gowra Reddy's case (supra), it has been held

that

26. A survey of various referred referred to above would lead to two issues, which have to be considered by this Court, viz., whether there was a contravention of the provisions of Sections 4 to 6 of the Act and whether the Writ Petitions are maintainable under Article 226 of Constitution of India.

29. As held by the Supreme Court in MUSLIM WAF BOARD case (1 supra), the proceedings under Section 4 of the Act are not administrative proceedings and they are quasi-judicial proceedings and there is no record to show that a notice was issued to either Mr. Rangaiah or his son Mr. Lakshmaiah at any point of time and no information is forthcoming as to what type of enquiry was conducted by the Survey Commissioner, which is required to be conducted under Section 4 of the Act. Admittedly, the Survey Commissioner was vested with the powers of a civil Court while conducting the enquiry under Section 4 of the Act and he has the powers to summon even the persons who are sought to be interested in the litigation. That is the reason why more importance was given to the report of the Survey Commissioner rather than the publication under Section 5 of the Act as it is a consequential action pursuant to the report of the Survey Commissioner and its examination by the Wakf Board. It is not in dispute that the notification was issued in 1989, but the pre-requisite for issuing the notification is the enquiry, which is contemplated under Section 4(3) of the Act. The letter of the Deputy Tahsildar dated 24-7-1967 reads thus:

"With reference to the subject, it is to state that it has been proved beyond doubt that the property mentioned in the schedule at the margin in a wakf property pertaining to Abbas Ali Khan mosque, Meerpet, Jillalaguda, One Laxhmiah R/o Meerpet has illegally occupied over the said wakf property and enjoying the same.The said property is estimated to be more than Rs.6,000/- per acre as per the local rates. The said land may be taken under the custody of the Government and one year assignment may be arranged and legal action must be taken against the illegal occupant, which shall be beneficial."

31. If this is construed as the report of the Survey Commissioner, then the purpose of incorporation of Section 4 of the Act is frustrated. It is only a form prescribed for registering a wakf. But what is required to be done by the Survey Commissioner is not to enter the wakf as such and he is bound to enquire whether the property is a wakf property or not. He is also empowered to conduct the enquiry as was observed by the Supreme Court in the decisions referred to above.

Mere filling of columns would not amount to report of the Survey Commissioner so as to bind the petitioners. Moreover, it is not in dispute that no notice was ever given to the occupants, who were recorded as such in the revenue register.

Admittedly, the report was of 1967 by which time the petitioners were not the purchasers. They came into picture at a later point of time. But,

even then the enquiry ought to project as to the notice having been given to the persons. Even according to the reports submitted by the Deputy Tahsildar and also the remarks made by the Survey Commissioner one Lakshmaiah was in actual cultivation, but according to the Deputy Commissioner Laxmaiah was in illegal occupation. Be that as it may, a notice was necessary to be given to the person who is in occupation. But, there is no such record forthcoming as to what type of notice was issued to the parties and what type of enquiry was conducted. The report of the Deputy Tahsildar cannot be construed as an enquiry report or the proforma for the survey of wakf properties can be treated as a report of the Survey Commissioner. The report as such has to conform to the requirements of Section 4 of the Act as has been held by the Supreme Court in the catena of decisions referred to above. It is also noticed from the counter that the subject matter of the property was endowed by the owner of the land one Abbas Ali Khan into the Wakf Board in the year 1968 and the same was included in the list of wakf properties and the same was published in the gazettee dated 9.2.1989 along with other properties endowed by the same person. If this if to be accepted, it has to be held that the Wakf was registered for the first time in 1968 and there could not have been any report of the Wakf Commissioner in 1967. Further the requirements under Section 25 of the Wakf Act 1954 have to be complied with. There is not even an iota of proof of dedication by Abbas Ali Khan nor is there any Wakf deed. It is very much doubtful whether Abbas Ali Khan was alive in 1968 as can be seen from the Judgment of II Additional, City Civil Court in O.S.No. 368/69 dated 31.3.1982 filed by one Abdul Qavi against Laxmaiah and others. When such statutory requirements are not followed, the further question that falls for consideration is whether still the petitioners are required to approach the appropriate Tribunal or they can agitate under Article 226 of the Constitution of India.

32. It is true that under Section 83 of the Act any dispute arising out of wakf properties can be agitated only before the Tribunal constituted under the Act. But, in the instant cases, the very principal requirement of notice and conducting enquiry as envisaged under the Act are lacking. Therefore, the question of driving the petitioners to the Tribunal would not arise. Admittedly, the petitioners have made out their occupation rights from Mr. Rangaiah's possession and thereafter Mr. Lakshmaiah and they have purchased the land under registered sale deeds and that too after obtaining appropriate permission from the competent authority and it is also one of the contentions of the petitioners that they have acquired title by adverse possession. But, I am not inclined to adjudicate the same inasmuch as I am only concerned with the validity of the notification published in the Gazette on 9-2-1989. The decision

referred to by the learned counsel for Wakf Board that the petitioners have to approach the Tribunal or the civil Court, as the case may be, even after the expiry of one year period after the publication of gazette notification is not applicable to the present cases, as that situation would not arise inasmuch as when the notice itself is lacking and no purpose will be served by approaching the Tribunal or civil Court. It is also to be noted that the report of the Survey Commissioner sent by the Government to the Wakf Board has no automatic acceptance. It is required to examine such report before publishing the list. This statutory obligation is also totally lacking in this case. When the violation of statutory provisions is made out, it is always open to the parties to approach this Court under Article 226 of the Constitution of India. Admittedly, as can be seen from various documents filed by both the parties in these matters, nothing has been established to sustain the contention that the enquiry was conducted as required under Section 4(3) of the Act. In such a situation, it cannot be said that the impugned Notification is binding on the petitioners and accordingly, the petitioners are entitled to challenge the same as it is illegal and not enforceable as far as the petitioners are concerned. Accordingly, I have to reject the contention raised on behalf of the Wakf Board and also the Government in this regard.

33. It is also to be noted in this regard that though the Wakf Board has been contending that the property in question is a wakf property, which was notified in the Official Gazette as early as in 1989, but it is surprising to note that till today no action has been initiated either for evicting the petitioners or for recovery of possession of the wakf property and no proceedings were initiated before the Tribunal constituted under the Act. None of the revenue records even whisper about the property as belonging to Wakf Board. It appears that the Wakf Board has filed an appeal only against the order of granting occupancy rights to the petitioners, and that too after one and half decades which is pending before the appellate authority on which I am not inclined to make any comments.Under these circumstances, I have to necessarily hold that the notification published by the Wakf Board in the Gazette on 9-2-1989 is not valid and the same is not binding on the petitioners. Accordingly, it is set aside as far as the petitioners are concerned.So far as the relief for quashing the proceedings pending before the appellate authority under the Inams Abolition Act is concerned, I am not inclined to do so. It is open for the parties to agitate their respective rights before the appropriate authority.

6. In Telangana State Wakf Board case (supra), it

has been held as under:

9. In respect of second batch of writ petitions, i.e., W.P. No. 20425 of 2009 and other connected matters, writ petitions have been filed challenging the Notification, dated 09.02.1989. The facts in W.P. No. 20425 of 2009, from which Writ Appeal No. 318 of 2021 is arising, are being deal with. The facts of the case reveal that the Notification dated 09.02.1989 issued by the Wakf Board declaring the land in Survey No. 253 to the extent of Acs.0.20 guntas situated at Mamidipally Village, Saroornagar Revenue Mandal, Ranga Reddy District as wakf land. The petitioner contended before this Court that one Smt. S.P.S. Gowri purchased the land from one Peromoni Komaraiah under a registered sale deed dated 23.06.1989. Subsequently, Smt. S.P.S. Gowri sold the land to the petitioner vide sale deed dated 13.03.2008 and the document was presented for registration under the provisions of the Registration Act on 13.03.2008. However, the Sub Registrar, Champapet, Ranga Reddy District (West) in spite of repeated requests, did not register the aforesaid document. The petitioner preferred W.P. No. 8480 of 2009 to declare the action of the Sub Registrar in not registering the document bearing No. 27 of 2008, dated 13.03.2008 as arbitrary and illegal and the said writ petition was disposed of by order dated 23.04.2009 directing the Sub Registrar to process the document for registration and in case of non-registration, to communicate the reasons to the petitioner. The petitioner submitted representation along with the order passed by this Court to the Sub Registrar. However, the Sub Registrar passed an order dated 15.06.2009 refusing to register the document on the ground that the property is a wakf property keeping in view the Notification dated 09.02.1989. It is pertinent to note that in another writ petition, i.e., W.P. No. 9378 of 2009, by an order dated 07.09.2009, this Court has directed the Sub Registrar to register the sale deed, which was also not being registered on account of Notification, dated 09.02.1989 and it was also observed that the registration shall be subject to result of the writ petition. The writ petitioner, thereafter, has preferred the present writ petition No. 20425 of 2009 praying for issuance of an order directing the Sub Registrar to register the property and also for declaring the Notification, dated 09.02.1989 as arbitrary and opposed to law. Thus, in short, in the second batch of writ petitions, the Notification, dated 09.02.1989 issued by the Wakf Board declaring the subject lands as wakf lands is under challenge.

13. While dealing with the validity of the impugned Gazette Notification No. 46-A, dated 15.11.2001, issued by the State under the provisions of the Wakf Act, 1954, which has been repealed by the Wakf Act, 1995, this Court in W.P. No. 33133 of 2014, by order, dated 22.09.2016, held as under:

48. In view of this decision, I reject the contention of the 2nd respondent that the survey report of the Survey Commissioner prepared in 1963 under the Wakf Act, 1954 is a completed action which is deemed to have been saved under the deeming clause in Sub-

section (2) of Section 112 of the Wakf Act, 1995. It is clearly an inchoate act and not a complete act and cannot be treated as something "done" or action "taken" under the Wakf Act, 1954. It would have been complete only or treated as something "done" or action "taken", only if there had been a Gazette Notification under Sub-section (2) of Section 5 of the Wakf Act, 1954.

15. In A.P. State Wakf Board v. Hyderabad Archdioceses Society Archbishop House2, this Court while dealing with the notification, dated 29.12.1988, at paragraph Nos. 16 and 33 to 36 has held as under:

34. It is now well settled that notification issued under sub-section (1) of Section 6 of Wakf Act making list as final and conclusive between the Wakf Board and the Muttawalli land the persons interested in the Wakf and not to extend its scope to the persons who are not persons interested in the Wakf. Therefore, the right, title and interest of a stranger, a non-Muslim to the Wakf in a property cannot be put in jeopardy merely because that property is included in the list of Wakfs. (See Board of Muslim Wakfs v. Radha Kishan, (1979) 2 SCC 468)

36. In view of the same, quashing notification on the ground that persons, who are likely to be affected by such notification, have not been served with any notice is justified.

The rest of the finding recorded by the learned Single Judge with regard to claim of the Wakf Board to notify the property as Wakf Property and title of the writ petitioners vis-à-vis Wakf Board, the learned Judge was not justified in deciding the said issue, which is dealt with in points Nos. 2 and 3.

19. Moreover, all the above referred judgments of this Court have become final and till date they are not set aside by the Hon'ble Supreme Court and therefore hold good.

20. In view of the law laid down by this Court as well as the Hon'ble Supreme Court in the above referred judgments, this Court is of the opinion that the notification, dated 09.02.1989, issued by the Waqf Board is one without jurisdiction and the same is liable to be set aside. Accordingly the second batch of writ petitions are allowed and the notification dated 09.02.1989, is set aside.

22. A perusal of the above portion reveals that the Joint collector has suo moto taken up the issue and while setting aside the orders of the RDO has granted ORC in favour of the Waqf Board, solely based on the Gazette Notification dated 09.02.1989. Neither the material on record nor the counters filed before this Court reveal that either the legal representatives of the Inamdars or the persons, in whose favour the RDO has granted ORCs, were put on notice nor given an opportunity of hearing with regard to the suo moto taking up of the case or that reliance was being placed on the Gazette Notification dated 09.02.1989 while passing the order, dated 25.02.2006. This Court as well as the Hon'ble Supreme Court in catena of cases have held that the principles of natural justice are inviolable and fundamental to the rights of the parties to be heard before any orders are passed and the Courts under Article 226 of the Constitution of India can exercise judicial power to review the decisions made by the subordinates/quasi judicial authorities to see whether the principles of natural justice are violated or not and whenever warranted the Court will step-in to correct the same. The power of judicial review has been held to form the basic structure of the Constitution and the said power cannot be controlled or excluded by any provision of Statute or Rules made thereunder. Therefore, the contention of the learned Standing Counsels that the only remedy available to the petitioners is to approach the Waqf Tribunal for setting aside the Waqf Notification, if they are aggrieved by the same, cannot be countenanced and the same has to be rejected. The Court while exercising power under Article 226 of the Constitution of India is not denuded of the power to deal with the orders of the Joint Collector to see whether the orders that are passed are in accordance with the procedure established by law or whether there was any violation of the principles of natural justice. Even though the learned Standing Counsel for the Waqf Board has relied on the judgment of the Hon'ble Supreme Court in Whirlpool Corporation (supra), but, as a matter of fact, in the said decision, the Hon'ble Supreme Court has held as under:

"Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged."

Thus, mere existence of an alternative remedy will not by itself take away the powers of the High Court under Article 226 of the Constitution of India to exercise its power to review the decision made by the quasi judicial authority.

Moreover, in State Bank of India v. M.S. Basi3, the Hon'ble Supreme Court has held that the order is liable to be set aside if no opportunity of hearing is afforded to the parties who are adversely affected.

Further, in Mariamma Roy v. Indian Bank4, the Hon'ble Supreme Court has held that even if an alternative remedy is available, if violation of the principles of natural justice is alleged, the writ petition is maintainable and the High Court can interfere.

Therefore, the contention of the learned Standing Counsel that it is only the Waqf Tribunal that can go into the validity or otherwise of the Gazette Notification cannot be countenanced and the same is rejected. The impugned order passed by the Joint Collector setting aside the order of the RDO granting ORCs without putting the parties on notice and without affording them an opportunity of hearing, violates the well recognized principles of natural justice i.e. audi alteram partem and the same cannot be countenanced and is liable to be set aside on this sole ground.

As seen from the record, the only material before the Joint Collector was the Waqf Notification, dated 09.02.1989, and admittedly the Waqf Board was not a party to the said proceedings nor there was any other material to contend that the subject lands are Waqf lands. In view of the fact that the notification dated 09.02.1989 itself has been held to be invalid and unsustainable and is set aside by this Court in the second batch of writ petitions, the order of the Joint Collector granting ORC in favour of the Waqf Board is also liable to be set aside and the same is accordingly set aside.

However, taking into consideration the arguments putforth by the Waqf Board, this Court is of the opinion that the ends of justice would be met if the matter is remanded back to the Joint Collector. Accordingly, the first batch of writ petitions are allowed and remanded back to the Joint Collector (now designated as Additional Collector (Revenue) to decide the matter afresh duly taking into consideration the above observations made by this Court. This entire exercise shall be completed as expeditiously as possible, preferably, within a period of three months from the date of receipt of a copy of this order. It is needless to mention that the Waqf Board, if it chooses, can implead itself before the Joint Collector and place any other material besides notification dated 09.02.1989, which has already been set aside, to buttress their case that the lands in question are Waqf lands and the same shall also be taken into consideration by the Joint Collector while passing the orders on

merits. It is needless to mention that all the parties shall be put on notice and afforded reasonable opportunity of hearing, before passing of the orders. It is also made clear that pending the appeals before the Joint Collector, if the parties alienate or change the nature of the lands, the same will be subject to the final orders likely to be passed by the Joint Collector, and in case any adverse orders are passed, the parties shall not claim any equities.

Insofar as third batch of writ petitions filed aggrieved by the Notification issued under Section 22-A of the registration Act are concerned, in view of the fact that the said notification has been issued based on the Notification dated 09.02.1989 issued under the Waqf Act, which has already been set aside by this Court, the Notification issued under Section 22-A of the Registration Act has to be necessarily set aside and the same is accordingly set aside. Accordingly, the third batch of writ petitions are allowed.

Accordingly, all the writ petitions are allowed, to the extent indicated above."

23. In the considered opinion of this Court, once the Division Bench of this Court while dismissing the Writ Appeal i.e., W.A. No. 1010 of 2012 has upheld the order passed by the learned Single Judge dated 06.02.2012, by which the Notification, dated 09.02.1989 was set aside, the question of taking a different view in the present Writ Appeals does not arise. Once the Notification has been held to be bad in law and the land which was subject matter of the Notification is again subject matter of the same Notification, this Court does not find any reason to interfere with the order passed by the learned Single Judge in allowing the writ petitions.

24. Resultantly, the order passed by the learned Single Judge in allowing the second batch of writ petitions does not warrant any interference and the writ appeals arising out of second batch of writ petitions are dismissed.

7. In view of the above legal precedents, this Court is

of the opinion that failure of the Waqf Board to comply with the

basics of natural justice was fatal to the declaration of the

disputed land as waqf property. It is not in dispute that

petitioners are in occupation of the land and the said land was

declared as waqf property by Notification dated 04.01.1990,

however, it was not preceded by any notice. The claim of

petitioners is that they came to know the Notification only when

they filed suit in 2007. The pre-requisite for publishing the waqf

is an enquiry to be conducted under Section 4 of the Act and

such an enquiry report has to be forwarded to the State

Government, who, in turn, has to forward the same to the Waqf

Board and the Waqf Board is required to examine the report and

thereafter publish the list of Waqfs in the Official Gazette. In the

instant case, it appears, the said requirements are not fulfilled.

Further, as argued by the learned Standing Counsel, it is true,

under Section 83, any dispute arising out of waqf properties can

be agitated only before the Tribunal constituted under the Act.

But, in this case, since the very requirement of issuing notice

and conducting enquiry as envisaged under the Act is lacking,

the question of driving petitioners to the Tribunal would not

arise at all. Hence, the contention of learned Standing Counsel

that petitioners must avail remedy under Sections 6(1) and 83

of the Act is without merit and baseless. Moreover, Section 83

does not bar Writ Petition, as established by the Hon'ble

Supreme Court as well as other High Courts in catena of

judgments.

8. For the foregoing reasons, Writ Petition is allowed

and the Gazette Notification dated 04.01.1990 insofar as

inclusion of lands of petitioners in an extent of Acs.2.36 guntas

in Survey No. 45 and Acs.13.17 guntas situated in Survey No.

46 of Bela Village and Mandal, Adilabad District is set aside. No

costs.

9. Consequently, the miscellaneous Applications, if

any shall stand closed.

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NAGESH BHEEMAPAKA, J 23rd February 2024

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