Telangana High Court

Sri. Chennu Radha Krishna, vs State Of Telangana, on 27 March, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

       HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

             WRIT PETITION No. 12434 OF 2023

ORDER:

This Writ Petition is filed aggrieved by the letter of

the 2nd respondent - Telangana State Waqf Board dated

04.10.2009 requesting the 6th respondent - Deputy

Commissioner, Greater Hyderabad Municipal Corporation not

to issue construction permission in respect of Survey Nos. 1, 94,

97, 107, 140, 141, 201, 215, 216, 217, 219, 222, 223, 224, 225,

255, 256, 306, 307, 320 to 327, 330 to 339 and 453 situated at

Gajularamaram Village, Qutbullapur Mandal, Medchal-

Malkajgiri District. A consequential direction is sought to the 6th

respondent to consider petitioner's explanation dated

05.04.2023 to the show cause notice dated 09.03.2023 and to

issue final commencement of work order in respect of building

permit order dated 09.02.2023.

2. Petitioner claims to be the absolute owner and

possessor of Plot No. 634, admeasuring 200 square yards in

Survey No. 219 having purchased the same from his lawful

vendor Sri Muknshi Ferozuddin, through registered sale deed

dated 08.12.2022. It is his case that the entire land was validly

purchased by their predecessor-in-title M/s Sri Venkateshwar

Visalapuri Cooperative Housing Society Limited through a

registered sale deed executed by the II Additional Judge, City

Civil Courts, Hyderabad on behalf of its original owners.

Petitioner is stated to have submitted an

Application through TS-bPASS and obtained building permit

order dated 09.02.2023, but the 6th respondent is not issuing

commencement of work order nor revoking the permission.

Whenever he is starting the work, they are interfering and trying

to stop the work illegally without following due process of law.

He requested several times not to interfere with the construction

work, then, on 09.03.2023, the 6th respondent informed that the

2nd respondent had given the letter dated 04.10.2019 requesting

not to issue construction permission to third parties in respect

of the above survey numbers stating that the said survey

numbers are attached lands pertaining to waqf institution

namely Ashoorkhana Nale Mubarak situated at Phattergatti,

Hyderabad and the same is also published in Hyderabad

Gazette dated 02.08.1956, State Gazette dated 16.03.1989 and

also in State Gazette dated 05.08.1999.

It is stated, petitioner came to know that after

issuance of above-mentioned letter by the 2nd respondent, at the

request of the 7th respondent - Assistant City Planner, the 4th

respondent - Tahsildar conducted inquiry; on 13.08.2020, he

addressed the letter to the 6th respondent stating that only

following properties are available as waqf in Gajularamaram

Village:

           Gaze Name of the     Sy.No         Gazette      Extent
  SI.      tte   Waqf                         No.&
  No.      SI.No                              Date
           .
  1.       4243 Ashoorkhana     Gramak        7-A      100
                                antam         16.02.19 Sq.Yar
                                              89       ds
  2.       4235   1.Ashoorkha Gramak          7-A      100
           &      na          antam           16.02.19 Sq.Yar
           4236   2.Ashoorkha                 89       ds & 6
                  na Bade Nal                          Sq.Yar
                  Sahab                                ds
  3.       4238   Graveyard   255             7-A      Ac.0.05
                                              16.02.19 Gutas

Except the above-said lands, the other survey

numbers mentioned in the impugned letter are not at all

mentioned as waqf in any of the Gazettes. On 29.09.2020, the

4th respondent addressed the letter to the 2nd respondent stating

that only the above-mentioned few properties are waqf

properties and advised to furnish details of survey numbers,

extents mentioned in the Gazette for taking necessary action to

the 5th respondent, but there was no reply from the 2nd

respondent.

On 23.02.2022, the 5th respondent addressed letter

to the 2nd respondent stating that there is a very small extent of

waqf land only in Survey No. 255 to an extent of Ac.0.05 guntas

and except this there is no other survey number belonging to

waqf lands and clarified that Gajularamaram Village was fully

developed with grampancahyat layouts and requested to furnish

details of waqf land in the above survey numbers with extent

and sketch plan within a week if there is no reply, permission

will be considered in respect of the above survey numbers. Till

today, there is no response from the 2nd respondent.

It is stated that under Section 7(11) of the TS b-

PASS Act, 2020, a deemed permission / approval can only be

revoked within 21 days of such deemed approval. The grievance

of petitioner is that he obtained permission on 09.02.2023,

however, without affording any opportunity of hearing or putting

him on notice, in violation of the principles of natural justice,

show cause notice was issued on 09.03.2023 directing not to

proceed with any type of construction work, failing which

necessary action would be taken as per the provisions of TS-

bPASS Act,2020 treating the same as unauthorised

construction.

3. Learned counsel for petitioner Sri Syed Waheed Ali

submits that no provision under the GHMC Act, 1955 or

building bye-laws or TS-bPASS Act enables the 6th respondent

to reject / hold the Application on the ground of ownership of

the applicant being doubtful. What all the municipal officials

require to do is to find out prima facie title and lawful

possession of the applicant, but they have no authority to

determine the title of the applicant; therefore, the 6th respondent

grossly erred in issuing the show cause notice on mere

assumption that it is 2nd respondent's land basing upon the

impugned letter issued by the 2nd respondent without following

due process of law. It is argued that the 6th respondent has lost

sight of the fact that they have granted several building

permissions to neighbouring properties falling in the same

survey number. According to learned counsel, the 6th

respondent erred in going into the title aspect of applicant and

erred in considering the judgments of this Court in Hyderabad

Potteries Private Limited v. Collector, Hyderabad

District 1, Church of South India Trust Association v.

GHMC 2, Challa Rajendra Prasad v. State of Telangana

(W.P.No. 2753 of 2021), T. Rameshwar v. Commissioner,

MCH 3 wherein this Court held that municipal authorities

cannot step into the shoes of the revenue authorities and the 6th

respondent is not entitled to cancel / revoke the permission

already granted. It is vehemently contended that the 2nd

2001(3) ALD 600

2010(1) ALD 561

2008(1) ALD 792

respondent without documentary proof cannot lay claim over

any property and moreover, the 2nd respondent without

following due process, forcefully obstructing the construction

and demanding illegal money without any right or interest, title

over the subject property.

4. Learned Standing Counsel for Waqf Board Sri Abu

Akram submits that waqf properties are inalienable as petitioner

now erroneously sought for virtual annulment of two special

enactments contrary to the settled principal of law. Sections 51

(1A) and 104A of Waqf Act, 1955 read with Section 22A1(C) of

the Registration Act, 1908 that explicitly prohibited alienation

are extracted hereunder for perusal -

" Under Section 51 Alienation of waqf property without sanction of Board to be void (1A) Why sale gift exchange mortgage or transfer of waqf property shall be void ab initio.

Under Section 104A Prohibition of sale gift, exchange, mortgage or transfer of waqf property- (1) Notwithstanding anything contained in this Act or any other law for the time being in force or any waqf deed no person shall sell gift, exchange mortgage or transfer any movable or immovable property which is a waqf property to any other person (2) Any sale gift exchange mortgage or transfer of property referred to in sub-section (1) shall be void ab initio U/S-22A The Registration Act 1908- Prohibition of registration of certain documents (1) The following class of documents shall be prohibited from registration (C) documents relating to transfer of property by way of sale, agreement of sale gift exchange or lease exceeding (ten) 10 years in respect of immovable property owned by Religious and Charitable Endowments falling under the preview of the Andhra Pradesh Charitable and

Religious Endowments Act 1987 or by Waqf falling under Waqf Act 1995 executed by persons other than those statutorily empowered to do so."

It is further submitted that the Full Bench

comprising of three Hon'ble Judges of the High Court in

Vinjamuri Rajagopala Chary v. The State represented by

its Principal Secretary Revenue Department 4 and

consecutively, Division Bench of this Court in District

Collector, Ananatapur v. M. Sadasıva Reddy 5 while framing

guidelines, also issued directions to Telangana State Waqf

Board to communicate list of all the waqf properties and in

compliance thereof, the guidelines issued by the Division Bench

of the Hon'ble Court were challenged before the Apex Court. The

Apex Court held in Siri Nivasam Mutually Aided, Housing

Building Society Ltd. V. State 6 as under:

" Mere registration of a document shall not confer title on the vendee/alienee if the property is otherwise covered by clauses (a) to

(e) of sub-section (1) of Section 22-A is to approach appropriate forums for appropriate relief.

We further make it clear that we have not considered the matter on merits.

According to the learned Standing Counsel, the

notified waqf property attached to the subject waqf institution is

not alienable at any point of time as Waqf and alienation are

2016 (1) ALT 550

2017(2) ALD 24 (DB)

2018(3) ALT(SC) 42 (FB)

both self-contrary. If at all done, it is void ab initio, as under

Section 51 (1A) and 104A of the Waqf Act, 1995 and in

compliance of the directions of the Division Bench, pursuant to

the Full Bench judgment, upheld by the Apex Court, the list of

waqf properties were communicated to the competent

authorities under Rule 239B of the Telangana Rules under the

Registration Act 1908 that has come into effect from 2nd June

2014 read with clause (c) of Section 22-A of the Registration Act

1908 that prohibited any registration of property included

falling within the preview of this list. Rule 26k read with Rule

243 of the Telangana Rules framed under the Registration Act

provide for cancellation of properties registered being legally

untenable.

It is further submitted that Division Bench of this

Court in Municipal Corporation, Hyderabad V. Philomena

Education Foundation of India 7 held as under:

" 32. Under Section 428(1) every person, who intends to erect a building, shall give to the Commissioner a notice of his intention in a Form, obtained for this purpose under such thing and the expenses thereof shall be paid by such person or owner as the case may be.

66. A party is not entitled to an order of injunction as a matter of right or of course Grant of injunction is within the discretion of the court. Shiv Kumar Chadha (1993) 3 SCC 161 Since the relief of ad- interim injunction is wholly equitable in nature the party invoking the jurisdiction of the Court has to show that he was not at fault, that he

2008 (2) ALD 1

himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking the relief His conduct should be fair and honest Gujarat Bottling Co. (1995) 5 SCC 545. Municipalities Act 2019: Under sub-section (3) of Section 104 of the Telangana Municipalities Act 2019-The Commissioner may, by notice, direct the transferee or the person to whom the Record of Rights passes, to produce before him, all documents evidencing the transfer and the person shall produce the same.

105-B. On the introduction of the duty on transfers of property- (a) section 27 of the Indian Stamp Act, 1899 shall be read as if it specifically requires the particulars to be set forth separately in respect of property situated within the limits of a municipality and outside such limits, (b) section 64 of the same Act shall be read as if it referred to the Municipal Council and Municipal Corporation concerned as well as the Government.

105-C The Government may make rules not inconsistent with this Act for regulating the collection of the duty on transfer of property, the payment thereof to the Municipal Councils and Municipal Corporations concerned and the deduction of any expenses incurred by the Government in the collection thereof.

In State of Kerala v. K. Prasad (Civil Appeal No.

2913 of 2007 [Arising out of S.L.P (Civil) No. 19854 of 2006 J @

para 13, it is held as under:

" It is true that Article 14 of the Constitution embodies a guarantee against arbitrariness but it does not assume uniformity in erroneous actions or decisions. It is trite to say that guarantee of equality being a positive concept, cannot be enforced in a negative manner. To put it differently, if an illegality or irregularity has been committed in favour of an individual or even a group of individuals, others, though falling in the same category, cannot invoke the jurisdiction of the writ courts for enforcement of the same irregularity on the reasoning that the similar benefit has been denied to them Any direction for enforcement of such claim shall tantamount to

perpetuating an illegality, which cannot be permitted. A claim based on equality clause has to be just and legal."

Learned Standing Counsel further submits that as

per G.O.Ms. No. 15 dated 22.09.2020, Government is committed

for protection of Waqf Properties in the State and to ensure that

they serve the purpose made out in "Mansha e Wakf" objectives

of wakf. Under Section 22-A of the Registration Act, 1908,

Prohibition of registration of certain documents (1) The following

class of documents shall be prohibited from registration namely;

documents relating to transfer of property by way of sale,

agreement of sale, gift, exchange or lease exceeding (ten) 10

years in respect of immovable property or by waqf falling under

Waqf Act 1995executed by persons other than those statutorily

empowered to do so. In order to ensure that there is no scope

for unauthorized transfer of Waqf properties by means of

registration or misuse of wakf properties the following measures

shall be taken

a) Prohibition from Registration under section 22-A of the Registration Act,1908: The Chief Executive Officer Telangana State waqf Board shall furnish the list of all waqf properties to Managing Director, Dharani portal/Inspector General (Registration & Stamps), who shall ensure that all wakf properties are included in the list of properties prohibited for Registration under section 22A (1)(c) of the Registration Act 1908 thereby putting them under AUTOLOCK and disabling the online registration module for such properties.

b) Non-issuance of building permits for construction by Municipalities and Gram Panchayats, The Chief Executive Officer, Telangana State Waqf Board shall furnish the list of waqf properties to all District collectors, Municipal Commissioners and Panchayat Secretaries (through the District Panchayat Officers) in the state immediately No building construction permit shall be issued by the Municipal Corporations, Municipalities and Gram Panchayats in waqf properties for purposes other than those authorised by the Minorities welfare Department

The Managing Director, Dharani portal, Inspector

General (Registration & Stamps), Commissioner &

Director(Municipal Administration), Commissioner (Panchayat

Raj), all District Collectors and all Commissioners of Municipal

Corporations in the state shall ensure that the above directions

are implemented strictly.

5. Perused the record. G.O.Ms.No. 15, dated

22.09.2020 provided protection to the waqf properties and

framed certain guidelines. According to the said G.O.,

documents relating to transfer of property by way of sale are

prohibited from registration under Section 22-A of the

Registration Act. Further, no building construction permit shall