Telangana High Court
Srinivas Rao Kasbe vs State Of Andhra Pradesh, on 20 March, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
*THE HONOURABLE SRI JUSTICE SAMUDRALA
GOVINDARAJULU
+ WRIT PETITION Nos.20293 & 29360 of 2011
% 29-02-2012
W.P.No.20293 of 2011
# Srinivas Rao Kasbe and 6 others
...... Petitioners
Versus
$ State of Andhra Pradesh, rep. by the
Principal Secretary to the Department of
Minorities Welfare & Wakf Board and 4 others
.....Respondents
W.P.No.29360 of 2011
# Gunna Bheemaiah and 4 others
...... Petitioners
And
$ State of Andhra Pradesh, rep. by the
Principal Secretary to the Department of
Minorities Welfare & Wakf Board and another
.....Respondents
! Counsel for the Petitioners: Sri Venkat Reddy Donthi Reddy
Counsel for Respondent No.1: GP for Social Welfare
Counsel for respondent No.2: Sri Meer Masood Khan
Counsel for respondents 3-5: Sri K. Mahipathy Rao
<Gist :
>Head Note:
? Cases referred:
1. 2002(3) ALT 439
2. 2011 (1) ALD 61 (SC)
3. AIR 1998 Supreme Court 972
IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH
AT HYDERABAD
HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
WRIT PETITION Nos.20293 & 29360 of 2011
DATE: 29.02.2012
W.P.No.20293 of 2011
Between:
Srinivas Rao Kasbe and 6 others
...... Petitioners
And
State of Andhra Pradesh, rep. by the
Principal Secretary to the Department of
Minorities Welfare & Wakf Board and 4 others
.....Respondents
W.P.No.29360 of 2011
Between:
Gunna Bheemaiah and 4 others
...... Petitioners
And
State of Andhra Pradesh, rep. by the
Principal Secretary to the Department of
Minorities Welfare & Wakf Board and another
.....Respondents
HONOURABLE SRI JUSTICE SAMUDRALA
GOVINDARAJULU
WRIT PETITION Nos.20293 & 29360 of 2011
COMMON ORDER :
The petitioners in W.P.No.20293 of 2011 filed the same
under Article 226 of the Constitution of India seeking writ of
certiorari for quashing notification published at Serial
No.30908 in supplement to Part II of the Andhra Pradesh
Gazette No.36-A dated 04.09.2003 as illegal, arbitrary and
violative of principles of natural justice. The said notification
notified lands in S.Nos.626, 638, 639 and 640 of
Chattanapally village, Farooq Nagar Mandal of
Mahaboobnagar District as wakf property.
2) The petitioners in W.P.No.29360 of 2011 filed the
same under Article 226 of the Constitution of India seeking
writ of Mandamus declaring notification published at Serial
No.30982 in Supplement to Part II of Andhra Pradesh
Gazette No.36-A, dated 04.09.2003 notifying lands
measuring Ac.9-26 guntas in S.Nos.261, 289, 290, 291,
292, 293, 294, 318 and 667 of Yelikatta village, Farooq
Nagar Mandal, Mahaboobnagar District as illegal, arbitrary,
unconstitutional and violative of principles of natural justice
and the Wakf Act, 1995 and to set aside the same.
3) It is contention of the petitioners in W.P.No.20293 of
2011 that the Revenue Divisional Officer, Mahaboobnagar
issued order dated 06.06.2009 conferring ownership of
rights for Ac.11.06 guntas in S.No.626, Ac.16-09 guntas in
S.No.638, Ac.3-06 cents in S.No.639 and Ac.2-05 cents in
S.No.640 totalling Ac.32-26 guntas in Chattanpally village in
favour of the petitioners declaring shares of the petitioners in
that land; and also issued ownership certificates under
Section 38-E in Form-II of the Andhra Pradesh (Telangana
Area) Tenancy and Agricultural Lands Act, 1950 (in short,
the 1950 Act) read with Rule 5(1) of the Andhra Pradesh
(Telangana Area) Protected Tenants (Transfer of Ownership
of Lands) Rules, 1973. It is contention of the petitioners that
the said lands are private patta lands of Late Ahmad Ali
Siddiqui and that late Nadikudi Ramaiah was protected
tenant in the said lands and his name was recorded as such
in final tenancy register of the village prepared under the
1950 Act and that the petitioners 2 to 7 are the lineal
descendants of late Nadikudi Ramaiah who continued to be
protected tenants and who acquired right of ownership in
the lands. It is their further contention that in pursuance of
order dated 06.06.2009 of the Revenue Divisional Officer,
Mahaboobnagar, the Tahsildar, Farooq Nagar Mandal by
order dated 27.06.2009 transferred pattas for the lands in
the names of the petitioners 2 to 7 and changed revenue
records showing their possession of the said lands. In the
year 2010, the 2nd petitioner sold Ac.2-01 Guntas of land in
S.No.626 in favour of the 1st petitioner under three different
sale deeds. It is the petitioners' further contention that late
Ahmed Ali Siddiqui filed declaration under the A.P.
Agricultural Lands (Ceiling on Agricultural Holdings) Act,
1973 declaring the above facts. Finally, it is contention of
the petitioners that Gazette notification dated 04.09.2003 is
bad since it was given without any notice to the protected
tenants who are in possession of the lands and without
making any enquiry under the provisions of the Wakf Act,
1995.
4) It is contention of the petitioners in W.P.No.29360 of
2011 that late Mir Tahir Ali was the original owner of total of
Ac.9-26 Guntas of land in S.Nos.261, 289, 290, 291, 292,
293, 294, 318 and 667 of Yelkatta village and that one Late
Gunna Narayana and Late Gunna Chennaiah were the
protected tenants of the said lands as per the tenancy
register of the year 1950-51 till the year 1984-85 and that
the petitioners 1 to 5 are lineal decendants of the original
protected tenants and that Revenue Divisional Officer,
Mahaboobnagar by his orders dated 12.07.1988 and
17.02.2003 issued certificates in Form-III under Section 7(1)
and 10 of the Andhra Pradesh (Telangana Area) Abolition of
Inams Act, 1955 (in short, the 1955 Act) in favour of the
petitioners 1, 2, 4 and 5 and husband of the 3rd petitioner
and that their names were mutated in revenue records as
pattadars and possessors. Subsequently the Joint
Collector, Mahaboobnagar issued order dated 11.06.2007
setting aside order granting occupancy right certificate in an
appeal filed by son of Mir Tahir Ali viz., Mir Qudrat Ali against
the order dated 12.07.1988. W.P.No.21089 of 2007 filed by
the petitioners against the Joint Collector's order was
admittedly dismissed for default on 25.06.2009. It is the
petitioners' further contention that Revenue Divisional
Officer, Mahaboobnagar conducted enquiry and passed
orders dated 17.12.2010 issuing O.R.C (occupancy rights
certificate) in favour of Dargah Hazrath Syed Shah Ali
Hussaini Saheb Rh (Wakf), Kachiguda, Hyderabad.
5) The 2nd respondent filed counter affidavits in both
the writ petitions denying rights of the petitioners in both the
writ petitions in the respective lands and contending inter
alia that lands which are subject matters in both the writ
petitions are wakf properties and that the lands in
W.P.No.20293 of 2011 are wakf properties belonging to
Dargah Hzt. Ghulam Nabi Sha Saheb Rh. & Mosque
outside abadi in Inam land and the property meant for
Fatheha and prayer and maintenance of said wakf
institution under the Muthavalliship of Ghulam Nabi Shah
Sajjad-e-Sani and that the lands in W.P.No.29360 of 2011
are Inam Mashrutul Khidmat lands attached to Dargah Hzt.
Syed Shah Ali Hussaini Saheb Rh. Endowed for God and
Gul under wakf properties.
6) Sheet anchor of the petitioners' contention in these
writ petitions is that without giving notice to the petitioners
who have been in possession of the lands as protected
tenants, the lands were notified as wakf properties under the
Wakf Act, 1995 and that it is contrary to the principles of
natural Justice and also contrary to Section 4 and 5 of the
Wakf Act, 1995. On the other hand, it is contention of the
respondents that the lands were notified as wakf properties
in the Andhra Pradesh Gazette after following due
procedure prescribed by law. It is the respondents' further
contention that the provisions of the 1955 Act and the 1950
Act have no application to wakf lands. It is further
contention of the respondents that remedy of the petitioners
in case they are aggrieved on notifying the lands as wakf
lands, is before the Wakf Tribunal and is not before this
Court under Article 226 of the Constitution of India. On the
other hand, it is contended by the petitioners' counsel that in
case the petitioners are questioning the notification as such,
then the petitioners' remedy may be before the Wakf
Tribunal, but the petitioners can approach this Court under
Article 226 of the Constitution of India as the petitioners are
questioning the process which preceded the notification in
question.
7) The petitioners' counsel placed reliance on B.Gowra
Reddy V. Government of Andhra Pradesh of Single
Judge of this Court, wherein it was observed:
"27. It is not in dispute that the petitioners have challenged
the validity of the Gazette notification dated 9.2.1989. It is
their case that there is a violation of provisions contained
under Section 4 of the Act inasmuch no enquiry was
conducted by the Survey Commissioner as required
under Section 4 of the Act. In such an event, it is the case
of the petitioners that no suit need be filed as the validity
of the notification itself is in challenge. --------------------------
---------------------------------- -------------------------------
But, however, in case when the order passed is wholly
without jurisdiction or the authority lacks the competence
or there is infraction of statutory provisions, it cannot be
said that the Writ Petition is not available to the aggrieved
party. In the instant cases, it has to be seen whether the
notification issued under Section 5 of the Act was
preceded by the statutory compliance as stipulated under
Section 4 of the Act."
and held as follows:
"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".
It is further contended by the petitioners' counsel that
B.Gowra Reddy (1 supra) was followed by Division Bench
of this Court in unreported decision in A.P. State Wakf
Board V. Sayyed Amanullah Hussaini in W.A. No.772 of
2007, dated 28.09.2007.
8) On the other hand, it is contended by the
respondents' counsel that the above two decisions
rendered by the Single Judge bench and the Division Bench
of this Court are no longer good law in view of recent
judgment of the Supreme Court in Board of Wakf, West
Bengal V. Anis Fatma Begum . Reliance is also placed
by the respondents' counsel on another decision of the
Supreme Court in Sayyed Ali V. Andhra Pradesh Wakf
Board , wherein it was held that in order to become a
property to be wakf property, dedication of property need not
be in favour of Dargah (wakf institution) and that grant by
way of service inams for purposes recognised by Muslim
Law as pious, religious or charitable also constituted the
property as wakf and that wakf being permanent dedication,
grant of patta under Inams Act does not nullify it. In reply to
the said contentions of the respondents, the petitioners'
counsel contended that the Single Judge's decision in
B.Gowra Reddy (1 supra) was confirmed in appeal by
Division Bench of this Court by order dated 21.03.2011 in
W.A. Nos.745, 868, 778, 885, 729 and 878 of 2002 wherein
several case law including Sayyed Ali (3 supra) of the
Supreme Court and Board of Wakf, West Bengal (2 supra)
of the Supreme Court were also considered.
9) The Division Bench in A.P. State Wakf Board V. B.
Gowra Reddy distinguished the Supreme Court cases
referred above on facts by stating that the facts in those
cases are entirely different to the issues involved in the
present case. While applying Supreme Court decisions to
the facts of the present case, it is to be borne in mind that
irrespective of facts in the Supreme Court cases, the Court
should see as to what was the ratio or obiter in that decision
of the Supreme Court. Irrespective of the fact whether it is a
ratio decidendi or obiter dicta, as per law of precedents, the
Supreme Court decision is binding on all the Courts in India
including the High Court whether presided by a Single
Judge or Division Bench or Full Bench. Ratio of the
Supreme Court in Board of Wakf, West Bengal (2 supra) is
to the following effect:
"10. In our opinion, all matters pertaining to Wakfs should
be filed in the first instance before the Wakf Tribunal
constituted under Section 83 of the Wakf Act, 1995 and
should not be entertained by the Civil Court or by the High
Court straightaway under Article 226 of the Constitution of
India.:-------------------------------------------------------------------------
-------------------------------------------------------------------
14. Thus, the Wakf Tribunal can decide all disputes,
questions or other matters relating to a Wakf or Wakf
property. The words "any dispute, question or other
matters relating to a Wakf or Wakf property" are, in our
opinion, words of very wide connotation. Any dispute,
question or other matters whatsoever and in whatever
manner which arises relating to a Wakf or Wakf property
can be decided by the Wakf Tribunal.-----------------------------
------------------------------------------------------------------------------
17. We may clarify that under the proviso to Section 83(9)
of the Wakf Act, 1995 a party aggrieved by the decision of
the Tribunal can approach the High Court which can call
for the records for satisfying itself as to the correctness,
legality or propriety of the decision of the Tribunal. This
provision make it clear that the intention of Parliament is
that the party who wishes to raise any dispute or matter
relating to a Wakf or Wakf property should first approach
the Tribunal before approaching the High Court.
18. It is well-settled that when there is a special law
providing for a special forum, then recourse can be taken
to the general law".
In whatever context the Supreme Court analysed the
provisions of the Wakf Act, 1995 and gave the above
findings on analysis of the provisions therein, it is intention of
the Supreme Court that general law must give way to the
special law enacted under the Wakf Act. When the
Supreme Court held that the words "any dispute, question or
other matters relating to Wakf or Wakf property" are words of
very wide connotation, it is not open to any inferior Court to
abridge wide connotation or wide amplitude of the said
words by confining ratio of the Supreme Court to facts of the
case in which the said ratio was pronounced. Not only
notification by which lands in question were notified as wakf
properties but also the process which preceded issue of
such notification comes within the wide connotation of "any
dispute, question or other matters relating to a Wakf or Wakf
Property" occurring in Section 83(1) of the Wakf Act, 1995
as laid down in Board of Wakf, West Bengal (2 supra).
10) Wakf Tribunal is constituted under Section 83(1) of
the Wakf Act for determination of any dispute, question or
other matter relating to a wakf or wakf property under that
Act. In these writ petitions, the petitioners contend that the
respective lands are private patta lands in respect of which
the authorities granted occupancy right certificate under the
1955 Act as well as recognised their title to these lands
under Section 38-E of the 1950 Act and the Rules framed
thereunder. On the other hand, it is contention of the Wakf
Board that those lands are Wakf Properties. It is primarily a
dispute regarding title for the lands which are notified as
Wakf properties under the Wakf Act. In these writ petitions,
the impugned notification was published in the Andhra
Pradesh Gazette on 04.09.2003, whereas the petitioners
intend to question the same herein in the year 2011 after a
gap of 8 years. Publication of notification in the State
Gazette operates as legal notice to all the concerned.
Taking advantage of the orders of the revenue authorities in
their favour in the year 2009, the petitioners intended to
question notification by which the lands were notified as
Wakf Properties under the Wakf Act is being challenged.
When the lands are notified wakf lands by virtue of the
notification published in official gazette on 04.09.2003, the
revenue authorities have no jurisdiction to decide nature of
those lands and to grant ownership rights under Section 38-
E of the 1950 Act or protected tenant certificates under the
1955 Act.
11) Statement of objects and reasons appended to the
1955 Act expressly indicates that the bill provided for
abolition of all inams other than inams held by religious and
charitable institutions and village service inams. Also,
Section 102(d) of the 1950 Act specifically excludes
application of the said Act to inams held by religious or
charitable institutions. Therefore, when the lands are
notified as lands belonging to Wakf Institution or Wakf
Property, then Revenue Divisional Officer, Mahaboobnagar
loses jurisdiction to entertain proceedings either under the
1955 Act or under the 1950 Act and grant ownership
certificates under Section 38-E of the 1950 Act or protected
tenancy certificate (O.R.C) under the 1955 Act in the year
2009 or in the year 2010 respectively. Further, the said
orders were obtained by the respective petitioners behind
the back of the Wakf Institution and A.P. State Wakf Board
even though all the lands are notified as lands belonging to
Wakf Institution.
12) In any event, remedy of the petitioners against the
impugned notification published in the Andhra Pradesh
Gazette on 04.09.2003 is before the Wakf Tribunal initially
and not before this Court. It is only after the Wakf Tribunal
gives the respective decisions, the aggrieved parties will
have to approach this Court under proviso to Section 83(9)
of the Wakf Act, 1995.
13) In the result, both the writ petitions are dismissed.
No costs. The respective petitioners in these two writ
petitions are at liberty to approach the A.P. Wakf Tribunal,
Hyderabad for necessary relief.
_______________________________
SAMUDRALA GOVINDARAJULU, J
February 29, 2012
NOTE: L.R.Copy to be marked
(b/o)Ksh
2002(3) ALT 439
2011 (1) ALD 61 (SC)
AIR 1998 Supreme Court 972
