Telangana High Court
Chekuri Praveena vs The State Of Telangana on 12 January, 2024
THE HONOURABLE SRI JUSTICE N.V.SHRAVAN KUMAR
WRIT PETITION No.32791 of 2023
ORDER:
This writ petition has been filed to declare the action of the
respondent No.2 in not releasing the said pending documents in
respect of lands admeasuring Ac.0-34 gts., in Sy.No.331 and
Ac.01-10 gts., in Sy.No.332, total admeasuring Ac.02-04 gts.,
situated in Khammam Urban Mandal, Khammam village and
District and the land admeasuring Ac.0-06 gts., in Sy.No.332,
Ac.01-16 gts., in Sy.No.335 and Ac.01-14 gts., in Sy.No.336 total
admeasuring Ac.02-36 gts., in Khammam Urban Mandal,
Khammam Village and District in the jurisdiction of Joint Sub-
Registrar, Khammam on the ground that the said property is
part of the Waqf gazette notification bearing No.4-A Supplement
to part - II dated 25.01.1990 at Page No.143, Sl.No.10714 as
arbitrary and illegal and consequently direct respondent no.2 to
release the aforementioned pending documents without
reference to the said Waqf Gazette notification.
Brief facts of the case:
2. Learned counsel for the petitioner submits that one
M.Vekataiah and M.Jayalaxmi are the absolute owners of the 2
land admeasuring Ac.5-00 gts in Sy.Nos.331, 332, 335 and 336
situated at Khammam Revenue District and Mandal, Khammam
Municipal town. Smt.M.Jayalaxmi who is the owner of Ac.02-36
gts., sold the said land to one G.Kishore (vide pending doc
No.P.111/2009) and inturn he gave GPA to Chekuri Sridhar i.e.,
the third petitioner herein (vide pending doc No.P.324/2009).
Thereafter, M.Venkataiah who is the owner of remaining Ac.02-
04 gts., sold the said land to N.Mallikarjun and inturn
N.Mallikarjun have sold the said land to petitioner Nos.1 and 2
herein (vide pending doc No.P/37/2011 dated 15.02.2011).
3. It is submitted that by virtue of the said sale petitioner
Nos.1 and 2 have become absolute owners of Ac.02-04 gts.,
whereas petitioner No.3 is GPA holder of G.Kishore and
petitioner No.3 purchased Ac.0-06 gts., of land in Sy.no.332,
Ac.01-16 gts., of land in Sy.no.335 and Ac.01-14 gts., of land in
Sy.No.336 total admeasuring Ac.2-36 gts., through pending
Doc.No.P/324/2009 dated 02.06.2009. It is further submitted
that Joint Sub-Registrar i.e., respondent No.2 herein received
the aforementioned documents, collected the requisite fees and
kept the documents pending from the year 2009. Thereafter,
when the petitioners have approached respondent No.2 to 3
release the above documents, it was informed that the subject
lands were part of the waqf Gazette Notification bearing No.4-A
part-II dated 25.01.1990 at page 143, Sl.No.10714.
4. It is further submitted that after obtaining a copy of the
Gazette Notification, it is submitted that Sy.Nos.270, 330, 331,
332, 335 and 336 were deliberately included in the aforesaid
Gazette Notification. It appears way back in the year 1955, the
said lands were already declared to be evacuee property by
Ministry of Rehabilitation, Government of India and thus without
conducting the proper enquiry the Gazette Notification was
published in the year 1990.
5. Thereafter, a writ petition i.e., W.P.No.10449 of 2008
was filed by a person interested in Waqf and by order dated
10.02.2009, this Court disposed of the said writ petition as
follows:
"It is no doubt true that the land referred to above was notified under the Waqf Act, through a notification dated 25.01.1990. However before that, the land was dealt with under the Administration of Evacuee Property Act, 1950 and it was allotted to a person displaced from Pakistan. The allottee in turn sold it in favour of third parties and ultimately respondents 5 and 6 have 4
purchased it. The mere fact that the property was notified ignoring the rights of existing title-holders cannot confer any right."
6. Accordingly, writ petition was disposed of with liberty to
petitioner therein or respondent No.1 / Waqf Board to work out
their remedies before the Waqf tribunal. Thereafter the petitioner
in W.P.No.10449 of 2008 moved Telangana Waqf Tribunal by
way of filing O.S.No.31 of 2009 and the said suit was dismissed
for default on 13.09.2022 in I.A.No.100 of 2018. Thereafter, the
then Government of Andhra Pradesh vide memo
No.12275/JA.1/2010 dated 24.12.2012 stated that the
proposals of District Collector, Khammam reported that the
lands in question were declared and notified as evacuee
properties and taken into custody of Government in the year
1955 and the owners of the land migrated to Pakistan in the year
1949 and that in the year 1956 the lands in question were
ordered to be handed over to the legal heirs. Accordingly, the
same were handed over. As such the allottee became the
pattadar of the subject lands. Thereafter, the said lands were
sold away. Thus, it is clear that the subject lands were evacuee
properties and later converted as patta lands and the same were
erroneously included in the Gazette in the year 1990 5
without giving proper notices to the occupants of the lands at the
time of publication of the subject lands in the gazette.
7. It is further submitted that the Government after careful
examination of the issue accepted the proposals of the Chief
Commissioner of Land Administration, Hyderabad/District
Collector, Khammam for deletion of the subject properties from
the list of Waqf which are originally evacuee properties and later
were converted as patta lands to an extent of Ac.6-34 gts., of
Khammam Urban and village of Khammam Districts. It is further
submitted that Waqf notification was set aside in the judgment
of this Court in the case of B.Gowra Reddy v. Government of
Andhra Pradesh 1. In view of the said circumstances, since the
joint sub-registrar is not releasing the pending documents, the
present writ petition is filed.
8. A counter affidavit has been filed on behalf of
respondent No.3 and submitted that he is not aware of the
transactions which allegedly took place in respect of subject
property and as such entering into transactions behind his back
is void ab initio and prohibited in the eye of law. He would
further submit that the subject lands are Waqf lands and the
1 2002 (3) ALT 439 6
circumstances mentioned in B.Gowra Reddy (supra) are not
applicable in the instant case.
9. Thereafter, a reply affidavit has been filed by the
petitioners and has reiterated the submissions made in the writ
affidavit. It is further submitted that the transactions elucidated
by the petitioners are on the basis of the correspondence among
governmental authorities and are prior to the alleged declaration
of the property as Waqf among other properties. It is further
submitted that the transactions originated form 1955 onwards
and that the gazette was notified in 1990.
10. It is further submitted that the respondents have not
followed the procedure laid down in the Waqf laws as to how the
waqf has been created and thereafter notified. It is further
submitted that it is mandatory for the Survey Commissioner to
make an enquiry for declaration of the Waqf and the powers so
conferred under Section 4 of the Waqf Act, 1954. Thus, prior to
publication of Waqf Gazette, it is mandatory on the apart of Waqf
Board to hold proper inquiry at grass roots level to find out the
rights of parties who are going to be affected due to such
notification. During inquiry, if any disputes arise, it has to be
settled first and mere conduct of survey as envisaged under 7
Section 4 of the Waqf Act, a full-fledged and formal survey is a
pre-requisite to declare a property as Waqf and in the absence of
such procedure, if any property is notified in the list of Waqf and
published in the Gazette, it does not constitute a valid Waqf and
even such notification shall not bind the state Government and
these views are held in by the Hon'ble Supreme Court in a
catena of judgments which are as follows:
(a) Salem Muslim Burial Ground Protection Committee v. State
of Tamil Nadu & others 2.
(b) Tamil Nadu Waqf Board v. Hatija Ammal 3
(c) Mandanuri Sri Rama Chandra Murthy v. Syed Jalal 4
(d) State of Andhra Pradesh v. A.P.State Waqf Board 5.
11. It is also submitted that the ratio laid down in B.Gowra
Reddy (supra) is equally applicable and binding to the present
circumstances of the case because the Court held that issue of
notices and holding inquiry under Section 4 of the Waqf Act is
essential before the publication of Waqf Gazette under Section 5
and petitioner would submit that Gazette Notification was not
valid and set aside the same to the extent of land therein.
2
2023 live law (SC) 454 3 AIR 2002 SC 402 4 (2017) 13 SCC 174 5 2022 SCC online SC 159 8
12. This Court on 06.12.2023 in I.A.No.1 of 2023, in terms
of order passed in W.P.No.14327 of 2020 dated 03.09.2020
directed the Sub-Registrar to receive, process, register and
release the document presented by the petitioner subject to the
petitioner complying with the provisions of Indian Registration
Act, 1908 and Indian Stamp Act, 1899. However, it was made
clear that registration shall be only a provisional one.
13. When the matter is taken up for hearing today, learned
counsel for the petitioner relied on the judgment passed by the
Division Bench of this Court in the case of Munawar Sultana
and others v. Gosula Ramulu and others 6 and this Court held
as follows:
23. The Supreme Court in Madanuri Sri Rama Chandra Murthy vs. Syed Jalal 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
6 2023 SCC Online TS 3820 9
State. The Survey Commissioner after making a 25 (2017) 13 SCC 174 27 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. Subsection (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 28 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 10
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.
26. 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 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 vs. Shaikh Yusuf Bhai Chawla). 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 11
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). The aforesaid view was reiterated with approval in Gammon India Limited vs. Special Chief Secretary28, 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 26 2022 SCC OnLine SC 1653 27 1955 (1) SCR 893 : AIR 1955 SC 84 28 (2006) 3 SCC 354 32 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.
12
28. In the instant case, the repeal of an enactment, namely 1954 Act is accompanied with simultaneous reenactment 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 reaffirmation of the old law.
31. Section 4(3) of the 1954 Act does not provide for a time limit within which the Commissioner after conducting the enquiry, has to submit the report to the State Government. It is equally true that Section 5 of the Act does not provide for time limit for issue of publication of list of wakfs. However, the Commissioner of Wakfs and the Wakf Board exercise the statutory function while preparing the enquiry report and publishing the same as list of wakfs under Sections 4 and 5 of the Act respectively. A mere survey carried under Section 4 of the 1954 Act does not extinguish the rights in a property. It is only on publication of notification under Section 5(2) of the Act, the rights of a person in a property are extinguished. Therefore, the statutory powers have to be exercised within a reasonable period as rights in a property may accrue after survey which may get extinguished on publication of the survey.
13
14. Learned counsel for the petitioner has also relied on
the judgment of the Hon'ble Supreme Court in the case of Salem
Muslim Burial Ground Protection Committee v. State of
Tamil Nadu and others 7 and the relevant paragraphs of the
said judgment are extracted herein:
30. The another limb of the argument is that the suit land has been declared to be a wakf property vide notification dated 29.04.1959. In this regard, it has to be noted that such a declaration has to be in consonance with the provisions of the Wakf Act, 1954 or the Waqf Act, 1995. Both the aforesaid Acts lay down the procedure for issuing notification declaring any property as a wakf.
31. The Wakf Act, 1954, which actually is relevant for our purpose, provides that, first, a preliminary survey of wakfs has to be conducted and the Survey Commission shall, after such inquiry 15 as may be deemed necessary, submit its report to the State Government about certain factors enumerated therein whereupon the State Government by a notification in the official Gazette direct for a second survey to be conducted. Once the above procedure of survey is completed and the disputes arising thereto have been settled, on receipt of the report, the State Government shall forward it to the Wakf Board. The Wakf Board on examining
7 2023 SCC Online SC 656 14
the same shall publish the list of wakfs in existence with full particulars in the official Gazette as contemplated under Section 5 of the Act. Similar provisions exist under the Waqf Act, 1995.
32. A plain reading of the provisions of the above two Acts would reveal that the notification under Section 5 of both the Acts declaring the list of the wakfs shall only be published after completion of the process as laid down under Section 4 of the above Acts, which provides for two surveys, settlement of disputes arising thereto and the submission of the report to the State Government and to the Board. Therefore, conducting of the surveys before declaring a property a wakf property is a sine qua non. In the case at hand, there is no material or evidence on record that before issuing notification under Section 5 of the 16 Wakf Act, 1954, any procedure or the survey was conducted as contemplated by Section 4 of the Act. In the absence of such a material, the mere issuance of the notification under Section 5 of the Act would not constitute a valid wakf in respect of the suit land.
Therefore, the notification dated 29.04.1959 is not a conclusive proof of the fact that the suit land is a wakf property. It is for this reason probably that the appellant Committee had never pressed the said notification into service up till 1999.
33. In Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead) by Lrs. Etc.6, it was observed that the 15
Wakf Board should follow the procedure as required under Section 4, 5 and 6 or Section 27 of the Wakf Act before notifying the wakfs under Section 5 of the Act.
34. In Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal, it was observed as under:
"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 6 AIR 2002 SC 402 7 (2017) 13 SCC 174 17 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...."
35. It may be noted that Wakf Board is a statutory authority under the Wakf Act. Therefore, the official Gazette is bound to carry any notification at the instance of the Wakf Board but nonetheless, 16
the State Government is not bound by such a publication of the notification published in the official Gazette merely for the reason that it has been so published. In State of Andhra Pradesh Vs. A.P. State Wakf Board and Ors.8, this Court consisting of one of us (V. Ramasubramanian, J. as a Member) held that the publication of a notification in the official Gazette has a presumption of knowledge to the general public just like an advertisement published in the newspaper but such a notification published at the instance of the Wakf Board in the 2022 SCC OnLine SC 159 State Gazette is not binding upon the State Government. It means that the notification, if any, published in the official Gazette at the behest of the Wakf Act giving the lists of the wakfs is not a conclusive proof that a particular property is a wakf property especially, when no procedure as prescribed under Section 4 of the Wakf Act has been followed in issuing the same.
36. In view of the aforesaid facts and circumstances, we do not find any substance in the argument that the suit land is or was a wakf property and as such would continue to be a wakf always. In the absence of any evidence of valid creation of a wakf in respect of the suit property, it cannot be recognized as a wakf so as to allow it to be continued as a wakf property irrespective of its use or disuse as a burial ground."
17
15. In the case on hand, the notification was issued by
respondent No.3 on 25.01.1990 under Section 4(3) of the Waqf
Act, 1954 and published under Section 5(2) pertaining to land in
survey Nos.330, 331, 332, 335 and 336 which are the subject
lands in the notification. In the counter filed by respondent No.3
he did not state to the extent that how he has followed the
proper procedure as prescribed under Section 4 and 5 of the
Waqf Act before issuing the Gazette Notification and in the
absence of such material mere issuance of the notification under
Section 4, 5 of the Waqf Act could not constitute a valid Waqf in
respect of subject lands and as such the notification dated
25.01.1990 is not a conclusive proof that the subject land is a
Waqf property and it has been published in the official Gazette at
the behest of the Waqf. In view of the same, notification is not
valid and the same is not binding on the petitioners.
16. Learned counsel for the petitioner has drawn the
attention of this Court to the communication memo dated
24.12.2012 issued by the Principal Secretary to Government
whereunder it was stated as follows:
5. Government, after careful examination of the issue, hereby accept the proposals of the Chief Commissioner of Land Administration, 18
Hyderabad/District Collector, Khammam for deletion of the above said properties from the list of Wakf properties which are originally evacuee properties and later converted as patta lands in Sy.Nos.330, 331, 332, 335 and 336 to an extent of Ac.6-34 gts., of Khammam Urban Mandal and Village, Khammam District which have been erroneously notified as Wakf properties by the Wakf Board in its Notification 4-A, dated 25.01.1990.
6. The Chief Executive Officer, Wakf Board, Hyderabad is requested to take further action for deletion of the above lands from Wakf properties."
17. Learned Assistant Government Pleader for Stamps and
Registration would submit that the pending documents have
already been released in view of the judgment of the Hon'ble
Division Bench of this Court in the case of Munawar Sultana
(supra).
18. Learned standing counsel appearing through virtual
mode on behalf of respondent No.3 would submit that they have
no claim over the subject property.
19. In view of the submissions made above and also taking
into consideration the above cited judicial pronouncements, this
writ petition stands allowed. The embargo placed upon the 19
petitioner in the order dated 06.12.2023 in I.A.No.1 of 2023 that
the registration shall be treated as 'provisional one', shall not
sustain anymore and the registration shall be treated as final
and absolute and therefore it cannot be deemed as provisional
one in view of the submission made by respondent No.3/Waqf
that they have no claim whatsoever on the subject property is
concerned.
Miscellaneous applications, if any pending, shall stand
closed. However, there shall be no order as to costs.
___________________________________ N.V.SHRAVAN KUMAR, J.
Date: 12.01.2024 mrm
