HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO AND HONOURABLE SRI JUSTICE T.VINOD KUMAR
WRIT PETITION No.20707 of 2018,
WRIT PETITION No.9709 of 2020 AND WRIT PETITION No.12548 of 2020
W.P.No.20707 of 2018
Between:
M/s.Sai Pawan Estates Pvtd. Ltd. and others. …Petitioners. And
1. The Telangana State Wakf Board, rep. by its Chief Executive Officer, Nampally, Hyderabad and others. …Respondents W.P.No.9709 of 2020
Between:
Katikaneni Praveen Kumar, S/o.late K.Krsihna Rao, aged about 50 years, Occu:Business, R/o.1st Floor, above Punjab National Bank, Manovikas Nagar, Hasmathpet Road, Old Bowenpally, Secunderabad – 500009. … Petitioner And
1. State of Telangana, rep. by its Principal Secretary, Revenue Department and others …Respondents W.P.No.12548 of 2020
Between:
Katikaneni Praveen Kumar, S/o.late K.Krsihna Rao, aged about 50 years, Occu:Business, R/o.1st Floor, above Punjab National Bank, Manovikas Nagar, Hasmathpath Road, Old Bowenpally, Secunderabad – 500009. … Petitioner And
1. State of Telangana, rep. by its Principal Secretary, Minority Welfare Department and others …Respondents
Date of Judgment pronounced on : 30.03.2021 MSR,J & TVK,J ::2:: wp_20707_2018&batch
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO AND HONOURABLE SRI JUSTICE T.VINOD KUMAR
1. Whether Reporters of Local newspapers : Yes/No May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes to Law Reporters/Journals:
3. Whether His Lordships wishes to see the fair copy : Yes/No Of the Judgment? MSR,J & TVK,J ::3:: wp_20707_2018&batch
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO AND HONOURABLE SRI JUSTICE T.VINOD KUMAR
WRIT PETITION No.20707 of 2018,
WRIT PETITION No.9709 of 2020 AND WRIT PETITION No.12548 of 2020
% 30.03.2021
# M/s.Sai Pawan Estates Pvtd. Ltd. and others.
… Petitioner
And $ 1. The Telangana State Wakf Board, rep. by its Chief Executive Officer, Nampally, Hyderabad and others.
…Respondents
< GIST:
> HEAD NOTE:
!Counsel for the Petitioner in W.P.Nos.20707 of 2018 & 12548 of 2020 : Sri K.S. Murthy
!Counsel for the Petitioner in W.P.Nos.9709 : Sri V.Ravinder Rao, learned Senior Counsel for Sri Zeeshan Adnan Mahmood
^Counsel for the Sate of Telangana : Learned Additional Advocate General. in W.P.Nos.20707 of 2018, 12548 and 9709 of 2020
^Counsel for the respondent 3 & 7 : Sri A.M.Qureshi in 20707 of 2018 and respondent No.7 and 8 in W.P.No.12548 of 2020
^Counsel for Telangana Wakf Board in W.P.Nos. : Sri D.V.Seetharama Murthy, learned 20707 of 2018 and 12548 of 2020 Senior Counsel for Sri Abu Akram, learned Standing counsel for Telangana Wakf Board. MSR,J & TVK,J ::4:: wp_20707_2018&batch
? Cases referred
1. order dt.27.11.2020 in W.P.Nos.14881 and 14885 of 2020 (DB) 2. (2004) 1 SCC 287, at page 291 3. (2020) 6 SCC 557 4. AIR 1967 SC 1 5. (2015) 14 SCC 784 6. (1997) 7 SCC 137 7. (1996) 6 SCC 223 8. (2012) 3 SCC 548 9. 2018 (6) ALD 160 (DB) 10. 2020 (3) ALD 528 (DB) 11. MANU/AP/0743/2016 = (2016) 6 ALD 752 12. 2011 (1) ALD 61 (SC) 13. (1998) 8 SCC 1 14. (2004) 3 SCC 553 15. (2011) 15 SCC 383 16. (2008) 12 SCC 500 17. (2014) 1 SCC 603 18. Civil Appeal No.1600 of 2020 decided on 14.02.2020 by a Three Judge Bench headed by Chief Justice of India, Justice B.R.Gavai and Justice Suryakant 19. (2010) 8 SCC 726 20. (2014) 16 SCC 51 21. (2014) 16 SCC 38 22. (2019) 4 SCC 698 MSR,J & TVK,J ::5:: wp_20707_2018&batch
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO AND HONOURABLE SRI JUSTICE T.VINOD KUMAR
WRIT PETITION No.20707 of 2018;
WRIT PETITION No.9709 of 2020 AND WRIT PETITION No.12548 of 2020
COMMON ORDER: (Per Sri Justice M.S.Ramachandra Rao)
Since these three Writ Petitions relate to land in Sy.No.80 of
Hafeezpet Village, Serilingampally Mandal, Ranga Reddy District and since common questions of fact and law arise in these three cases, they are being disposed of by this common order.
2. There is a three pronged contest/claim to land in Sy.No.80 of
Hafeezpet Village, Serilingampally Mandal, Ranga Reddy District
among:
(i) petitioners in these Writ Petitions, who contend that it is
private land belonging to them,
(ii) the State of Telangana represented by its Secretary, Minority
Welfare Department (respondent no.2 in W.P.No.20707 of 2018 and
respondent no.1 in W.P.No.12548 of 2020) and its Principal
Secretary, Revenue Department (respondent no.3 in W.P.No.12548 of
2020 and respondent no.1 in W.P.No.9709 of 2020), District
Collector, Ranga Reddy District (respondent no.4 in W.P.No.20707 of
2018, W.P.No.12548 of 2020 and respondent no.3 in W.P.No.9709 of MSR,J & TVK,J ::6:: wp_20707_2018&batch
2020), Tahsildar/Deputy Collector, Serilingampally Mandal, Ranga
Reddy District (respondent no.5 in W.P.No.12548 of 2020 and also in
W.P.No.9709 of 2020), Joint Sub-Registrar and Registering Officers,
Ranga Reddy District (respondent no.6 in W.P.No.20707 of 2018 and in W.P.No.12548 of 2020), District Registrar, Ranga Reddy District
(respondent no.5 in W.P.No.20707 of 2018), Principal Secretary,
Home Department of State of Telangana (respondent no.2 in
W.P.No.9709 of 2020), Revenue Divisional Officer, Serilingampally
Mandal, Ranga Reddy District (respondent no.4 in W.P.No.9709 of
2020), Station House Officer, Miyapur Police Station (respondent
no.6 in W.P.No.9709 of 2020), Mandal Revenue Inspector,
Serilingampally Mandal, Ranga Reddy District (respondent no.7 in
W.P.No.9709 of 2020) and Village Revenue Officer, Hafeezpet
Village, Serilingampally Mandal, Ranga Reddy District (respondent
no.8 in W.P.No.9709 of 2020), who contend that it is Government
land; and
(iii) the Telangana State Wakf Board (respondent no.1 in
W.P.No.20707 of 2018 and respondent no.2 in W.P.No.12548 of
2020), Sultan Ahsan-ud-Dowla said to be Mutawalli and
Sajjadanasheen of Dargah Hazrat Salar-E-Auliya (respondent no.7 in
W.P.No.20707 of 2018 and in W.P.No.12548 of 2020) and Dargah
Hazrat Salar-E-Auliya (respondent no.3 in W.P.No.20707 of 2018 and
respondent no.8 in W.P.No.12548 of 2020) , who contend that it is
wakf property. MSR,J & TVK,J ::7:: wp_20707_2018&batch
Claim of the petitioners
3. Petitioners 1 and 2 in W.P.No.20707 of 2018 contend that there
was a preliminary decree passed on 28.06.1963 in C.S.No.14 of 1958,
a suit for partition filed by one Smt. Dildarunnissa Begum of the
Matruka properties of Khurshhed Jah, a Paigah; by virtue of a
partition final decree dt.26.02.2010 passed by the then High Court for
the State of Andhra Pradesh in Appln.No.132 of 2010 in C.S.No.14 of
1958, they, along with others, are absolute owners and possessors of
land admeasuring Ac.50.00 in Sy.No.80 of Hafeezpet Village,
Serilingampally Mandal, Ranga Reddy District; and that a Receiver-
cum-Commissioner appointed by the said High Court had handed
over possession of the land to them by way of panchanama.
They contend that the Telangana State Wakf Board is
contending that the above land is Wakf property endowed to the
Dargah Hazrat Salar-E-Auliya and the said Board had written a Letter
in File No.M/35/SMTC/2005 dt.16-6-2020 to the Sub-Registrar,
Moosapet, Ranga Reddy District requesting him, with copies marked
to respondents 4 and 5, not to entertain transactions such as sale and
purchase, mortgage, transfer or alienation of lands in Sy.No.80 of
Hafeezpet village.
They seek a declaration that Gazette Notification contained in
F.No.16/RR/REG/2013 published in the Telangana State Gazette
dt.01-11-2014 and the Letter in File No.M/35/SMTC/2005
dt.16-6-2020 are illegal, ultravires the provisions of the Wakf Act, MSR,J & TVK,J ::8:: wp_20707_2018&batch
1995 and to set aside the same; and for a direction to the respondents not to interfere with the possession and enjoyment of petitioners of their land of Ac.50.00 in Sy.No.80 of Hafeezpet village and to entertain transactions such as sale and purchase, conveyance, gift and mortgage in the said land.
4. The petitioner in W.P.No.9709 of 2020 and W.P.No.12548 of
2020 is one and the same.
His case is that he and M/s. Greater Golconda Estates Private
Limited and others became the absolute owners and possessors of an
extent of Ac.47.00 out of Ac.50.00 in Sy.No.80/D, which is part of
Sy.No.80, Hafeezpet Village under a registered deed of partition/out
of Court settlement dt.10.03.2016.
According to him, there was a preliminary decree passed on
28.06.1963 in C.S.No.14 of 1958, a suit for partition filed by one Smt.
Dildarunnissa Begum of the Matruka properties of Khurshhed Jah, a
Paigah ; pursuant to the preliminary decree, an Advocate Receiver had
prepared a scheme of partition; the sharers / decree holders as per the
preliminary decree sold their rights in the preliminary decree in favour
of H.E.H. The Nizam of Hyderabad and Kazim Nawaz Jung, who
were impleaded in C.S.No.14 of 1958 as defendant nos.156 and 157
respectively, and subsequently H.E.H. The Nizam had sold away his
interest in favour M/s. Cyrus Investments Limited; that the said
Company was impleaded as defendant no.206 in C.S.No.14 of 1958; MSR,J & TVK,J ::9:: wp_20707_2018&batch
after the death of Kazim Nawaz Jung, his wife Smt.Bashirunnisa
Begum and daughter Smt.Rasheedunnisa Begum along with
M/s. Cyrus Investments Limited had executed an assignment deed in favour of M/s. Greater Golconda Estates Private Limited in respect of
Ac.50.00 in Sy.No.80/D of Hafeezpet Village which was registered as
Document No.2192/2009 dt.07.12.2005 in the office of the District
Registrar, Ranga Reddy District.
He contends that after the execution of the said deed,
M/s. Greater Golconda Estates Private Limited and others filed
Application No.132 of 2010 in C.S.No.14 of 1958 for passing of final decree; the said Application was allowed on 26.02.2010 and a final decree was passed in favour of M/s. Golconda Estates Private Limited and others to an extent of Ac.47.00 and for an extent of Ac.3.00 in
favour of three individuals by name (i) Syed Mohd. Dawar Hussain,
(ii) Noorunnisa Begum and (iii) Mohd. Amar Ibrahim Khan.
He contends that himself, one V.R.M.K. Babji and M/s. Greater
Golconda Estates Private Limited and others, who had all made some
investments in respect of the land, later entered into the registered
settlement deed dt.10.03.2016 (Document No.2630/2016) settling
among themselves, Ac.25.00, Ac.6.00 and Ac.16.00 respectively out
of the Ac.47 in Sy.No.80 of Hafeezpet village after demarcating the
same specifically as mentioned in the deed of settlement. MSR,J & TVK,J ::10:: wp_20707_2018&batch
According to the petitioner, since the State of Telangana was disputing his claim and contending that it was Government land and
was refusing to allow mutation in revenue records, and it’s officials were trying to interfere with his and his co-owner’s possession thereof, he had to file W.P.No.9709 of 2020.
He sought to declare that the State of Telangana and its employees are not entitled to make any claim whatsoever in respect of land in Sy.No.80 of Hafeezpet Village, more particularly land admeasuring Acs.50.00 in Sy.No.80/D of Hafeezpet Village; and also sought directions to the respondent nos.1, 3, 4 and 5 to (i) delete the
entries in the Revenue Records showing the said land as Government
land, (ii) to mutate the said land in favour of petitioner and his co-
owners, and (iii) to restrain the respondents from interfering with the
peaceful possession and enjoyment of petitioner and other co-owners
in Acs.47.00 out of Acs.50.00 in Sy.No.80/D, which is part of the
original Sy.No.80 of Hafeezpet Village.
As the Telangana State Wakf Board had also claimed the said
land as a Wakf property, Petitioner also filed W.P.No.12548 of 2020
to declare the impugned Gazette, i.e., the Telangana State Gazette
Part-II, bearing No.79 dt.01.11.2014, wherein Munthaqhab entered in
the Book of Endowment Volume – II at Page No.159 at Sl.No.37 in
F.No.16/RR/Reg/2013, dt.13.12.2013 was published, as null and void
and issued in violation of the provisions of Waqf Act, 1995, principles
of natural justice and Articles 14, 19, 21 and Article 300-A of the MSR,J & TVK,J ::11:: wp_20707_2018&batch
Constitution of India and contrary to the orders emanating from the
preliminary and final decrees in C.S.No.14 of 1958; and consequently
to declare all the actions taken in furtherance of the impugned Gazette
including but not limited to issuance of the impugned proceedings by
the 2nd respondent-Waqf Board dt.16.06.2020 vide proceedings bearing F.No.M1/35/RR/SNTC/2005 to respondent no.6 as null and void.
5. It is the contention of the petitioners that the land in Sy.No.80
of Hafeezpet Village was of a total extent of Ac.484.30 gts., and
Hafeezpet Village was mentioned in item no.37 of Schedule IV to the
plaint in C.S.No.14 of 1958. According to the petitioners, the claim of
the State Government was rejected in respect of land in Hafeezpet
Village at least 7 times as under:
S.NO. DATE PARTICULARS 1 1955 One Mrs. Dildarunnisa Begum, has filed suit for partition of Matruka Properties of Nawab Kursheed Jah Paigah. The State of Andhra Pradesh, the predecessor of the State of Telangana, was Defendant No.53 and it’s Jagir Administrator was Defendant no.43 and they have contested the suit taking a plea by claiming title over the properties mentioned in the plaint schedules including Schedule IV. 2 28-06-1963 The High Court of Andhra Pradesh rejected the plea of the State and passed a preliminary decree. 3 05.07.1974 The order of the High Court in Appln. No.19 & 114 of 1973, directing the Government to deliver the suit schedule item 37 lands to the Receiver-cum-Commissioners. FIRST TIME LITIGATION TO SUPREME COURT 4 18-12-1982 The State of Andhra Pradesh filed Appln.No.44 of 1982 for amendment of the decree to delete the suit schedule item Nos.37 (lands in SNo.77,78,80 of Hafeezpet village) of Schedule-IV from the suit schedule by contending that the lands are Inam Lands and are not available for partition. The contention of the State was rejected and the application was dismissed. 5 24-12-1999 Against the orders passed in Appln.No.44 of 1982, appeal in OSA No.1 of 1985 was filed before the Division Bench and the said appeal was dismissed. MSR,J & TVK,J ::12:: wp_20707_2018&batch
6 2000 The State Government carried the matter to the Supreme Court challenging the orders passed in O.S.A.No.1 of 1985, and later on, it withdrew the SLP with a permission to challenge the preliminary decree. SECOND TIME LITIGATION TO SUPREME COURT 7 17-02-2001 The State Government then filed appeal in O.S.A.Sr.Nos.3526 & 3527 of 2000, challenging the preliminary decree by contending that the lands are Inam lands. The said appeal was dismissed. (pages 127 - 143 of the paper book filed by the petitioners in W.P.No.20707 of 2018) 8 16-07-2001 Aggrieved by the above orders dt.17-02-2001, the State Government had filed SLP.Nos.10622 and 10623 of 2001 and the same were dismissed. Thus the preliminary decree was confirmed by the Supreme Court. (Page 144 of paper book filed by the petitioners in W.P.No.20707 of 2018) THIRD TIME LITIGATION TO SUPREME COURT 9 24-08-2001 Thereafter when there are alienations by the sharers by way of assignment deeds, with regard to the suit schedule item No.37 (which contains Hafeezpet village), the State filed O.S.A.Nos.19 to 26 of 2001, challenging the orders of recognition of assignment deeds and the orders of impleadment of the purchasers as defendants in the suit. The grounds taken were that the lands are Inam lands and the lands were not released by the Government. But rejecting the said contention, the Division Bench of the High Court had dismissed the appeals. 10 08-04-2002 Aggrieved by the above said orders of the Division Bench dt.24-08-2001, the State filed SLP.Nos.4463 to 4470 before the Supreme Court and the same was dismissed. 11 2003 After dismissal of the above SLP, the State had filed Review Petitions before the High Court in O.S.A.Nos.19 to 26 to Review the orders, but the same were dismissed by holding that the lands are paigah patta lands. Thus it is confirmed that the lands are released and the lands are available for partition belong to decree holders. 12 05-11-2004 After exhausting the legal battle, the State had constituted a High Level Committee, and finally,after obtaining the opinions of the said committee, CCLA and the Advocate General, the State had issued Memo directing the District Collector to grant mutations in respect of the suit schedule lands. (Pages 146 – 147 paper book filed by the petitioners in W.P.No.20707 of 2018) FOURTH TIME LITIGATION TO SUPREME COURT 13 26-04-1999 As per the orders passed in W.P.No.10605 of 1997 the lands in Hasmathpet (also in item 37 of plaint in the CS) were identified and declared as lands belonging to Paigah Kursheed Jahi and are available for partition. 14 11-03-2004 Aggrieved by the orders in the above W.P., the Government filed W.A.No.2222/2003 and the same was dismissed. 15 05-01-2005 The orders in the above W.A. were challenged in SLP.NO.11996/2004, before the Supreme Court and the same was dismissed. (Page 167 of the paper book filed by the petitioners in W.P.No.20707 of 2018) MSR,J & TVK,J ::13:: wp_20707_2018&batch
FIFTH TIME LITIGATION TO SUPREME COURT 16 2007 After dismissal of SLP, the State had filed Review WPMP Nos.11425 & 11426 of 2006 in W.P.No.10605/97 and the said Review petitions were also dismissed. 17 08-02-2008 Aggrieved by the orders in Review Petitions 11425 & 11426 of 2006, the State filed SLP CC 1574 of 2008 and the same was dismissed. Thus the lands covered by the suit schedule lands in C.S.No.14 of 1958 are declared as patta lands. (Page 177 of the paper book filed by the petitioners in W.P.No.20707 of 2018) 18 18-05-2009 Memo No.59734/JA.1/2005 was issued by the Government of Andhra Pradesh, Revenue (JA) Department, stating that the lands covered under Schedule –IV & IV-A of suit schedule properties of C.S.No:14/1958 have been released by the Government and it further directed the District Collector to mutate the names of the Final Decree Holders in the Revenue Records. (Pages 178 -179 of the paper book filed by the petitioners in W.P.No.20707 of 2018) 19 21-05-2010 In compliance of the above Government Memo, the District Collector, Ranga Reddy vide Ltr.No:LC1/356/2010 directed the concerned Tahsildars to implement the Government Memo by taking necessary action for cancellation of assignment if any as per Court orders and orders of the Government on the lands covered by C.S.No:14/58 subject to final decree passed duly following the rules that are in force. (Page 180 of the paper book filed by the petitioners in W.P.No.20707 of 2018) SIXTH TIME AGAINST FINAL DECREE IN SY.NO.78 & 80 OF HAFEEZPET LANDS 20 31-03-2010 Final decree was passed in respect of the subject lands in Sy.No.78 of Hafeezpet village in Appln.No.239 & 517 of 2009. 21 30-04-2013 The final decree was challenged by the State by filing O.S.A.Sr.No.3875 of 2012 & batch and the same were dismissed by the Division Bench of this Hon’ble Court. 22 15-09-2010 Application No.420 of 2010 was filed for passing of final decree in respect of the lands to an extent of Ac.116-00 guntas in Sy.No.80 of Hafeezpet village. The same was dismissed by a learned Single judge by holding that the lands are not available for partition in view of Inam/Jagir Abolition Regulations. 23 01-02-2011 The orders of the learned single Judge were appealed in O.S.A.No.18 of 2010.
By setting aside the orders of the learned single Judge, the final decree was passed in O.S.A.No.18/2010 by a Division Bench. 24 2011 Aggrieved by the above final decree, the State had filed SLP.22420 of 2011 before the Supreme Court on the ground that the lands are Inam Althmagha lands as per the Inam Enquiry, and the lands are not released by the Government as held in the decree, and hence the lands are not available for partition. Hence, the final decree cannot be passed.
25 26-11-13 The SLP was dismissed. MSR,J & TVK,J ::14:: wp_20707_2018&batch
Thus the final decree had become final and the decree holders in the suit in C.S.No.14 of 1958 have became title holders against the Government in respect of all the items relating to the suit in C.S.No.14 of 1958.
6. They thus contend that the State of Andhra Pradesh, which is
the predecessor of the State of Telangana, had lost 6 rounds up to the
Supreme Court and it’s claims that the lands were Government lands
was rejected.
7. They further contend that recently when permission for
construction was denied by the Commissioner, GHMC in respect of
plots of land in Sy.No.78 of Hafeezpet Village on the ground that it is
Government land, this Court had set aside the same in A.Salivahana
Reddy v. GHMC and others1 and directed the Commissioner,
GHMC to grant permission recording that the State had lost its title as
mentioned above and the property cannot be said to be belonging to
the State; the said order was also affirmed by the Supreme Court in
SLP (C) No.1702 – 1703 of 2021 dt.27.01.2021; and this being the
seventh time the State had lost its claim, the land in Hafeezpet village
can no longer be claimed as State Government land, and any such
claim is purely vexatious and mala fide.
8. It is contended that after the State lost its claim for the sixth
time on 26.11.2013 in SLP.22420 of 2011 before the Supreme Court,
it instigated and set up the Telangana State Wakf Board to issue a
1 order dt.27.11.2020 in W.P.Nos.14881 and 14885 of 2020 (DB) MSR,J & TVK,J ::15:: wp_20707_2018&batch
Muntakhab in F.No.16/RR/REG/2013 by way of a Notification published in the Telangana Gazette on 01.11.2014.
9. This Muntakhab was published by the Telangana Wakf Board on the basis of an Application allegedly made by Sultan
Ahsan-ud-Dowla, alleged Mutawalli of Dargah Hazrat Salar-E-Auliya on the basis of an unregistered Wakfnama allegedly executed on
01.01.1955 by one Smt. Muneerunnisa Begum, who was defendant no.34 in C.S.No.14 of 1958, creating a Wakf in respect of Acs.140.00 in Sy.No.80 of Hafeezpet Village for the benefit of the said Dargah, and after the Wakf Board passed Resolution No.936 of 2013, it registered the said land as Wakf land under Section 36 of the Wakf
Act, 1995.
10. It is the contention of the petitioners that the State of Telangana
and the Telangana Wakf Board are colluding with each other and
reliance is being placed by the petitioners on an additional counter
affidavit filed on 16.02.2021 in W.P.No.20707 of 2018 on behalf of
both the Telangana State Wakf Board (respondent no.1 in the said
WP) and the State of Telangana represented by its Secretary, Minority
Welfare Department (respondent no.2 in the said WP).
They contend that a common counter affidavit could not have
been filed on behalf of respondents 1 and 2 stating that the subject
property is Wakf property, when the State of Telangana had set up
rival title to the Telangana State Wakf Board in the counter affidavit MSR,J & TVK,J ::16:: wp_20707_2018&batch
filed by the District Collector, Ranga Reddy District (respondent no.4 in W.P.No.20707 of 2018). They also say that in the counter affidavit
filed by respondent no.4, he took the plea in para 13 of his counter
affidavit that the land is ‘Sarkari’ land and that he does not know on what basis the Telangana State Wakf Board had issued the Gazette
Notification declaring Ac.140.00 in Sy.No.80 as Wakf property.
This mild statement by respondent No.4 and the absence of any vehement opposition to the claim of the Telangana State Wakf Board, according to the petitioners, clearly indicates collusion between the
State of Telangana and the Telangana State Wakf Board.
Events after filing of the Writ Petitions :
11. The petitioners in W.P.No.20707 of 2018 had filed I.A.No.1 of
2018 therein seeking interim suspension of the operation and effect of
the Telangana State Gazette Part II bearing No.79 dt.01.11.2014
wherein Munthakab was entered in Book of Endowment, Volume II,
at Page No.159, at Serial No.37 in F.No.16/RR/REG/2013
dt.13.12.2013 as regards land in Sy.No.80 of Hafeezpet Village.
12. They also filed I.A.No.3 of 2020 in W.P.No.20707 of 2018
praying that this Court should direct the District Registrar, Ranga
Reddy District(respondent no.5) and the Joint Sub-Registrar, Ranga
Reddy District (respondent no.6) to receive, register and release sale
deeds / gift deed / mortgage deed / release deed / conveyance deed
relating to lands in Sy.No.80 of Hafeezpet Village, Serilingampally MSR,J & TVK,J ::17:: wp_20707_2018&batch
Mandal, Ranga Reddy District by suspending the operation and effect of the proceedings of the 1st respondent in File No.M/35/SMTC/2005
dt.16.06.2020.
13. On 16.09.2020, a Division Bench of this Court allowed both the
applications.
14. Challenging the same, the State of Telangana filed Civil Appeal
No.4060-61 of 2020 in the Supreme Court of India.
15. The petitioner in W.P.No.12548 of 2020 filed I.A.N.o.1 of 2020
to suspend the operation and effect of the proceedings bearing
No.F.No.M1/35/RR/SNTC/2005 dt.16.06.2020 issued by the
Telangana State Wakf Board (respondent no.2) to the Joint Sub-
Registrar, R.O., Ranga Reddy (respondent no.6); and I.A.No.2 of
2020 to suspend the operation and effect of the Telangana State
Gazette Part II, bearing No.79 dt.01.11.2014 wherein Munthakab was
entered in the Book of Endowment, Volume II, at Page No.159 at
Serial No.37 in F.No.16/RR/REG/2013 dt.13.12.2013 was published
pending disposal of the said Writ Petition.
16. By order dt.11.08.2020, this Court had granted interim
directions in I.A.Nos.1 and 2 of 2020 in W.P.No.12548 of 2020.
17. Challenging the same, the State of Telangana filed Civil
Appeal Nos.4058-59 of 2020 in the Supreme Court. MSR,J & TVK,J ::18:: wp_20707_2018&batch
18. On 15.12.2020, Civil Appeal Nos.4058-59 of 2020 and Civil
Appeal No.4060-61 of 2020 were allowed by a common order, and
the above interim orders granted on 11.08.2020 in I.A.Nos.1 and 2 of
2020 in W.P.No.12548 of 2020 and on 16.09.2020 in I.A.Nos.1 and 2
of 2020 in W.P.No.20707 of 2018 were set aside on the ground that
opportunity was not granted to the appellants to file their response.
The Supreme Court directed the appellants to file counter-affidavits
within four weeks and gave a direction to this Court to finally dispose
of these Writ Petitions after the pleadings are complete. The Supreme
Court did not express any opinion on the merits of the rival
contentions.
19. Subsequent thereto, counter-affidavits and reply-affidavits have
been filed by the parties. The arguments of counsel on both sides
were heard on 23.02.2021 and 01.03.2021 and orders were reserved.
20. We shall deal with the issues raised by the petitioners vis-à-vis
the State of Telangana under Part A and with the issues raised by the petitioners vis-à-vis Telangana State Wakf Board under Part B.
PART - A
The claim of the State of Telangana and its consideration by the Court:
21. Before we deal with the claim of the State of Telangana, it is
important to note that its predecessor, the State of Andhra Pradesh
was impleaded as defendant No.53 in CS No.14 of 1958 and the Jagir MSR,J & TVK,J ::19:: wp_20707_2018&batch
Administrator of the Government of Hyderabad was impleaded as defendant No.43 in the said suit.
22. One Smt. Dildarunnissa Begum had filed O.S.41/1955-56 on
file of the Court of additional Judge, City Civil Court, Hyderabad for
partition of the Matruka properties of Nawab Khursheed Jah, a
Paigah, who had died in 1902. The said suit was withdrawn and taken
on the file of the High Court of Andhra Pradesh and renumbered as
C.S.No.14 of 1958. Hafeezpet patta lands, a compact area comprising
Ac.1210 acres, was mentioned at item No.37 of Schedule IV to the
plaint.
23. A preliminary decree was passed on 28.06.1963 was passed
holding that this item is available for partition if they are released by
the Government.
24. The State of Andhra Pradesh filed Application No.44/1982
seeking amendment of the preliminary decree dt.28.6.1963 by
deleting item Nos.35 to 38 and 40 of schedule-IV of the preliminary
decree (including Hafeezpet village) contending that the said decree
was not in consonance with the judgment and the said properties were
not divisible and they belonged to it.
25. On 18-12-1982, Application No.44/1982 was dismissed by this
Court holding that the decree was in consonance with the judgment.
26. O.S.A.No.1 of 1985 was filed by the State Government against
the order dt.18-12-1982 in Application No.44/1982. MSR,J & TVK,J ::20:: wp_20707_2018&batch
27. On 24-12-1999, O.S.A.No.1 of 1985 filed by the State
Government was dismissed by this Court.
28. The State challenged the order in O.S.A.No.1985 before the
Supreme Court in S.L.P. (C) No.7052 of 2000, but it was withdrawn
on 05-05-2000 by informing the Supreme Court that the State would
file a regular appeal against the preliminary decree dt.28-06-1963 in
C.S.No.14 of 1958 along with application for condonation of delay.
29. O.S.A. (SR) No.3526 of 2000 was filed by the State against the
preliminary decree dt.28-06-1963 along with application for
condonation of delay of more than 38 years. It was specifically
contended by the State that the properties are Inam lands, that they
belong to the Government and were not partible. The said O.S.A.(SR)
was dismissed on 07-02-2001 by a Division Bench of this Court.
30. S.L.P. (C) Nos.10622-10623 of 2001 was filed against the order
dt.07-02-2001 in O.S.A. (SR) No.3526 of 2000. They were dismissed
on 16-07-2001.
31. Thus, the challenge of the State of Andhra Pradesh to the
preliminary decree dated 28.06.1963 in CS No.14 of 1958 miserably
failed.
32. So we are not adjudicating in this Writ Petition the title to land
in Sy.No.80 of Hafeezpet village which the petitioners are claiming
through the parties in C.S.No.14 of 1958, vis-à-vis the State of
Telangana. Such adjudication adverse to the State of Andhra Pradesh, MSR,J & TVK,J ::21:: wp_20707_2018&batch
it’s predecessor, having already occurred as above, such adjudication binds the State of Telangana too and we are merely taking note of it and applying it.
33. The denial by the State of Telangana of the right, title or
interest of the petitioner as regards lands in Sy.No.80 of Hafeezpet
village in this Writ Petition, in our opinion, amounts to a collateral
attack on the adverse finding about it’s predecessor’s title in
C.S.No.14 of 1958.
34. Can the State of Telangana make such collateral attack and
overcome the adverse finding given by the A.P. High Court about it’s
predecessor’s title in C.S.No.14 of 1958 ?
2 35. In Rafique Bibi v. Sayed Waliuddin , the Supreme Court held:
“ 8.….A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings.”
3 36. In Nusli Neville Wadia v. Ivory Properties , the Supreme
Court reiterated:
“21. ….When the court has the power to inquire into the facts, apply the law, render binding judgment, and enforce it, the court has jurisdiction. Judgment within a jurisdiction has to be immune from collateral attack on the ground of nullity. It has co-relation with the constitutional and statutory power of tribunal or court to hear and
2 (2004) 1 SCC 287, at page 291 3 (2020) 6 SCC 557 MSR,J & TVK,J ::22:: wp_20707_2018&batch
determine. It means the power or capacity fundamentally to entertain, hear, and determine.” (emphasis supplied)
37. Also, a decision of the A.P. High Court regarding the lack of
title of the State Government cannot be questioned, because it is a
Court of record.
38. As held in Naresh Shridhar Mirajkar v. State of
4 Maharashtra , the High Court is a superior court of record and under
Article 215 shall have all powers of such a court of record including
the power to punish contempt of itself. One distinguishing
characteristic of such superior courts is that they are entitled to
consider questions of their jurisdiction raised before them. In the case of a superior court of record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior court is entitled to determine for itself questions about its own jurisdiction. The Supreme Court referred to a passage from Halsbury’s Laws of England where it is observed that
“prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court”. If the decision of a superior court on a question of its jurisdiction is erroneous, it can, of course, be corrected by appeal or revision as may be permissible under the law;
4 AIR 1967 SC 1 MSR,J & TVK,J ::23:: wp_20707_2018&batch
but until the adjudication by a superior court on such a point is set
aside by adopting the appropriate course, it would not be open to be
corrected by the exercise of the writ jurisdiction of this Court.
39. In view of the same, in our considered opinion, it is not open to
the State of Telangana, which is the successor of the State of Andhra
Pradesh, to re-agitate the question of title to lands in Hafeezpet
village. It is also not open to the State of Telangana to collaterally
attack the preliminary decree which is being relied upon by the
petitioners against it, when its attempts to directly challenge it have
failed in this Court as well as in the Supreme Court.
40. Keeping these important facts in mind and also the fact that on
six earlier occasions set out above, the claim of the State Government
had been negatived, we need to examine the case of the State of
Telangana.
Contention No.(a)
41. Firstly, the learned Additional Advocate General referred to the
plea in para-3 of the counter affidavit filed by the District Collector,
Ranga Reddy District (R-4 in WP No.20707 of 2018 and WP
No.12548 of 2020) that in the pahani for the year 1952-53, land in
Sy.No.80 admeasuring Ac.484.31 gts. situated at Hafeezpet village is
shown as Government land classified as “Kancha Sarkari”. The State
has also filed several pahanis for the periods from 1955-56 to 2010-11 MSR,J & TVK,J ::24:: wp_20707_2018&batch
in support of its plea that the State is shown as enjoyer and pattadar of
land in Sy.No.80 of Hafeezpet village.
Consideration by the Court of Contention No.(a) :
42. It is settled law that mutation of land in revenue records is not
evidence of title. In H.Lakshmaiah Reddy Vs. Venkatesh Reddy5, the Supreme Court held:
“8…….The mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue. The observations of this Court in Balwant Singh case6 are relevant and are extracted below: (SCC p. 142, paras 21-22) “21. We have considered the rival submissions and we are of the view that Mr Sanyal is right in his contention that the courts were not correct in assuming that as a result of Mutation No. 1311 dated 19-7-1954, Durga Devi lost her title from that date and possession also was given to the persons in whose favour mutation was effected. In Sawarni v. Inder Kaur7, Pattanaik, J., speaking for the Bench has clearly held as follows: (SCC p. 227, para 7) ‘7. … Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment.’”(emphasis supplied)
43. Thus, assuming that there is an entry in the Pahani of 1952-53
or other pahanis that the land in Sy.No.80 of Hafeezpet village is
“Kancha Sarkari”, it cannot be held that the State is owner of the said
land.
5 (2015) 14 SCC 784 6 (1997) 7 SCC 137 7 (1996) 6 SCC 223 MSR,J & TVK,J ::25:: wp_20707_2018&batch
Contention No.(b) :
44. Next it is contended that the subject land is a Jagir, that Jagir
systems had been abolished with effect from 15.09.1949; and
thereafter, the right in a Jagir or Paigah stood extinguished and the
property vests in the State Government; and the shareholders in the
Jagir/Paigah land are only entitled to payment of commutation which
was already awarded by the Jagir Administrator on 15.09.1962.
Consideration by the Court of Contention No.(b) :
45. We have already referred to the fact that the State had raised a
plea in OSA (SR) no.3526 of 2000, filed by it against the preliminary
decree dt.28-6-1963 in CS no.14 of 1958, that the lands were inam
lands, that they were not partible and to set aside the preliminary
decree on the said basis and the said OSA was dismissed on 7.2.2001
and the said order was also confirmed in
SLP.(C).No.10622-10623/2001 on 16.7.2001.
46. The then State of A.P. had also filed Review Applications
No.1408-15 of 2001 in OSA.No.19-26 of 2001 in CS No.14 of 1958
raising this very plea and the same was rejected by a Division Bench
of this Court on 31.10.2003. (pg.218-275 of papers filed by petitioner
in W.P.No.12548 of 2020)
47. We may also point out that the land in Survey No.80 and 78 of
Hafeezpet Village were allotted to Defendant Nos.157 and 206 in
equal halves vide report dt.13.07.1984 of the Advocate-Receiver MSR,J & TVK,J ::26:: wp_20707_2018&batch
appointed by this Court in C.S.No.14 of 1958; Defendant No.206 had executed assignment deeds in favour of I. Sudarshan Rao and others and had also given consent for passing of final decree by way of settlement; in Application No.420 of 2010 on 23.06.2010, though a learned Single Judge declined to pass final decree in respect of
Ac.115.00 in Sy.No.80/A of Hafeezpet Village, the said order was reversed by a Division Bench in O.S.A.No.18 of 2010 on 01.02.2011 and the Division Bench passed final decree in Application No.420 of
2010 in favour of vendors of the petitioner. In the order dt.01.02.2011 of the Division Bench in O.S.A.No.18 of 2010, it held as under :
“In a final decree appeal, the correctness of the preliminary decree cannot be gone into when the appealing party has not filed an independent appeal against the preliminary decree. However, we are afraid that we are bound by the orders that were passed in the suit by co-ordinate Division Benches and the Apex Court and hence we refrain from making any comment about the correctness of the orders. We hold that the State had raised all contentions which include the tenure of the land being Jagir / Inam in the earlier round of litigation and failed. It has also failed in Review Petitions filed by it. The argument of the State that the release orders were not passed as contemplated by the preliminary decree, was also rejected by the co-ordinate Benches. Hence, we hold that the contentions that are canvassed by the State before the learned single Judge and reiterated before us, are devoid of any merit and they stood rejected earlier in the various orders referred by us in the foregoing paragraphs. Finality of a proceeding is the foundational bedrock in a civil litigation and parties cannot be allowed to take defences in piecemeal or by installments from time to time. Thus, viewed from any angle, we are unable to accept the findings of the learned single Judge. We further hold that the learned single Judge has outstepped the jurisdiction in formulating the points for consideration / issues at MSR,J & TVK,J ::27:: wp_20707_2018&batch
a final decree stage. Suffice it to say that the order under appeal is unsustainable in law.” (emphasis supplied)
48. It is also not in dispute that SLP (Civil) No.22420 of 2011 filed
by the Jagir Administrator, Government of Andhra Pradesh and
another against Burugupally Sivaramakrishna and two others was
dismissed on 26.11.2013.
49. In view of the above judgments to which the State Government
was a party, it is clear that this point had been urged earlier by the
State in applications filed in the very suit CS No.14 of 1958 and it had
not had any success. So it is no longer open to it to again raise this
plea and re-agitate the issue in these Writ Petitions.
Contention No.(c) :
50. In para-4 of the counter, the District Collector contended that in
the preliminary decree dated 28.06.1963 in CS No.14 of 1958, an
extent of Acs.1333.00 gts. was mentioned without giving survey
numbers and that Hafeezpet village is mentioned at item No.37 of
Schedule – IV. Thus, the State wants to contend that the Schedule in
the plaint is vague.
Consideration of Contention No.(c) :
51. This point was available to the State when it sought amendment
to the preliminary decree in Application No.44 of 1982, but it was not
taken and the Application was dismissed on 18.12.1982 and was
confirmed in OSA No.12 of 1985 on 24.12.1989. MSR,J & TVK,J ::28:: wp_20707_2018&batch
52. Again it could have raised the said issue in OSA (SR)
Nos.3526 and 3527 of 2000 challenging the preliminary decree, but
the said appeal was also dismissed on 17.02.2001 and the same was
confirmed in SLP Nos.10622 and 10623 of 2001 which were also
dismissed on 16.07.2001.
53. It cannot be contended that this is a new fact entitling the State,
at this point of time, to question the preliminary decree collaterally in
this writ petition, because it was an existing fact from 1955/1958
when the suit was instituted; and when its challenge directly to the
preliminary decree failed in OSA (SR) Nos.3526 and 3527 of 2000 which were dismissed on 17.02.2001. In our opinion such a plea is barred by principles of constructive res judicata.
Contention No.(d) :
54. In para-5, the District Collector refers to the compromise
among private parties leading to the filing of Application No.132 of
2010 in Application No.117 of 2008 in CS No.14 of 1958 and the
order dated 26.02.2010 passed by a learned single Judge of this Court
in Application No.132 of 2010 recording the said compromise and it
is contended that the said compromise is not binding on the State
Government as it was not a party. It is further contended that it is not
open to a few parties to a suit for partition (even if they are in a
majority) to compromise the matter between themselves and make
self-allotments of properties that they want to take away. MSR,J & TVK,J ::29:: wp_20707_2018&batch
Consideration by this Court of Contention No.(d) :
55. But, the learned Additional Advocate General is unable to point
out any principle in law which prohibits a compromise between only
some of the parties to a partition suit when no other decree holder
opposes the said compromise. Also the said compromise was in 2010,
long after the passing of the preliminary decree in C.S.No.14 of 1958,
which was passed on 28.6.1963, and the State failed to get it set aside.
56. In fact the order dated 26.02.2010 in Application No.132 of
2010 itself records that a compromise between some parties alone
cannot effect the possession of other parties to the suit and such a
transaction entered into between certain parties cannot injure those
who are not parties to the transaction, that the Court is not
determining the rights of the parties who were claiming the property
and is only seeking to record compromise which in its opinion was
lawful.
57. However, in our opinion the said observation might apply to
other decree holders in the suit, but not to the State Government
which had lost its claim for title to land in Hafeezpet Village at the
stage of the preliminary decree itself. It is not for the State
Government to raise any such plea because its challenge to the
preliminary decree dated 28.06.1963 passed in CS No.14 of 1958 had
failed in OSA (SR) Nos.3526 and 3527 of 2000 on 17.02.2001 which
was confirmed on 16.07.2001 by the Supreme Court. It cannot set up
any further claim to the land in Sy.No.80 of Hafeezpet village on the MSR,J & TVK,J ::30:: wp_20707_2018&batch
pretext that the compromise decree in Application No.132 of 2010
does not bind it.
Contention No.(e) :
58. In para-5 it is further contended by the District Collector that
mere recording of compromise does not amount to passing of a final
decree.
Consideration by the Court of Contention No.(e) :
59. We may point that in a partition suit normally, a preliminary
decree would declare rights and liabilities of the parties leaving actual
result to be worked out in further proceedings. Then, as a result of
further enquiries conducted pursuant to the preliminary decree, the
rights of the parties are finally determined and a decree is passed in
accordance with such determination, which is the final decree.
60. But, there may be situations where the compromise decree itself in a partition suit has the effect of allotting a specific portion of the property to the parties as their share of property. In such circumstances, no further enquiry is necessary. The decree passed on the basis of the compromise, in such cases, not only declares the rights of the parties interested in the properties, but also allots the properties according to the respective shares of each party. Therefore, it will not be a preliminary decree but it would be a final decree in the suit. MSR,J & TVK,J ::31:: wp_20707_2018&batch
61. In Bimal Kumar v. Shakuntala Debi and Ors.8, the Supreme
Court held that a compromise essentially means settlement of
differences by mutual consent, and in such a process adversarial
claims come to rest; the intention of the parties is to put an end to a
litigative battle; and in a partition suit when the parties entered into a
compromise and clearly admitted that they were in separate and
exclusive possession of the properties and the same had already been
allotted to them, no final decree or execution was required to be filed.
It held that in such cases, the rights of the parties had fructified and
their possession was exclusively determined and nothing more
remains to be done.
It declared that if a compromise decree in a suit for partition
allots specific properties to the share of each party, then there is no
necessity for further enquiry; and such a decree did not merely declare
the rights of the several parties interested in the properties but also
allotted the properties according to the respective shares of each party;
and such a compromise decree was not a preliminary decree but it was
the final decree in the suit.
62. If one were to peruse the compromise dt.29.12.2009 entered
into by the parties, which is recorded in application No.132 of 2010,
the parties to the compromise had demarcated their respective
portions in Sy.No.80 as per sketch appended to it in green and red
8 (2012) 3 SCC 548 MSR,J & TVK,J ::32:: wp_20707_2018&batch
colors, and it is mentioned that the respective parties shall contain themselves with the respective parcels of the land.
63. Thus, in effect, the compromise which has been approved by
the High Court in application No.132 of 2010 is essentially in the
nature of a final decree.
64. Therefore, the plea of the State that no rights would accrue to a
party basing on a preliminary decree, until final decree is passed, and
that the petitioners cannot lay a claim on the said property, on the
basis of the compromise decree, cannot be countenanced.
65. In any event, objections of this nature might possibly be raised
by other decree holders pursuant to the preliminary decree dt.
28.06.1963 in CS No.14 of 1958, but it is certainly not open to the
State Government to raise these pleas since its direct attack on the
preliminary decree in C.S.No.14 of 1958 itself had failed.
Contention No.(f) :
66. In para-6, the District Collector states that there are no
sub-divisions in Sy.No.80 as per Survey and Boundaries Act, 1923
and so the petitioner in WP No.20707 of 2018 cannot claim land in
Sy.No.80/D as it does not exist in the revenue records.
Consideration by the Court of Contention No.(f):
67. In this regard we may point out that the Memorandum of
compromise records that Basheerunnisa Begum and Rasheedunnisa MSR,J & TVK,J ::33:: wp_20707_2018&batch
Begum (defendant Nos.334 and 335) are legal representatives of
Kazim Nawaz Jung (defendant No.157); that Kazim Nawaz Jung had
acquired right, title and interest of all sharers along with M/s.Cyrus
Investments Ltd. (defendant No.206); that a scheme for partition was
prepared by the Advocate receiver and the Revenue Divisional Officer
in Application No.139/71; that defendants 206, 334 and 335 have
mutually divided the entire land in Sy.No.80 of Hafeezpet village into
equal halves as per orders dt.05.11.1970 passed in Application No.142
of 1970; and in the said internal division Sy.No.80/A was allotted to
defendant No.206; and Sy.No.80/B, 80/C and 80/D were allotted to
the defendant Nos.334 and 335; and the internal division had nothing
to do with the revenue sub-divisions and the said division was
confirmed by various orders of the High Court.
68. Under Section 8 (2) of the Telangana Rights in Land and
Pattedar Passbooks Act, 1971, any person who is aggrieved as to any
rights of which he is in possession by an entry made in any record of
rights, can institute a civil suit against any person interested to deny
his title or denying his title to such right for declaration of his right
under Chapter VI of the Specific Relief Act, 1963 and the entry in the
record of rights shall be amended in accordance with any such
declaration.
69. Thus, the decision of the Civil Court on the issue of title is
binding on the revenue authorities and they should amend the record
of rights in tune with the Civil Court’s decision. MSR,J & TVK,J ::34:: wp_20707_2018&batch
70. So, the Revenue department officials of the State Government
have to give effect to the orders passed in CS No.14 of 1958 and
create the subdivisions in Sy.No.80 as per the orders passed by this
Court; and since its claim was dismissed even at the stage of
preliminary decree, it cannot, on the pretext of there being no revenue
sub-division, refuse to implement the orders passed by this Court.
71. We may point out that : (i) for Acs.2.00 in Survey No.80/A
(forming part of Sy.No.80 of Hafeezpet Village), orders were passed
by the Revenue Authorities vide proceeding No.B/186/2009
dt.29.06.2009 directing mutation of one C. Kalyan, (ii) for Ac.0.27
gts. in Survey No.80/A orders were passed by the Revenue
Authorities vide proceedings No.B/184/2009 dt.29.06.2009 in favour
of G.B. Rajendra Prasad, and (iii) for Acs.5.00 in Survey No.80/A
orders were passed by the Revenue Authorities vide proceedings
No.B/187/2009 dt.29.06.2009, in favour of Singanamala Ramesh
Babu’s name. This was subject matter of W.P.No.19303 of 2016 and
W.P. No.4311 of 2020 where the Revenue Authorities had refused to
implement the above orders. The said Writ Petitions were allowed on
15.12.2020 and a direction was given to the Revenue Authorities to implement the above proceedings in the Revenue Records including
Pahanies and Record of Rights.
72. In any event, on the pretext of lack of sub-division in the
Revenue Records of Sy.No.80 of Hafeezpet Village, the State cannot MSR,J & TVK,J ::35:: wp_20707_2018&batch
claim ownership of the said land and refuse to abide by the various
orders passed in C.S.No.14 of 1958.
Contention No.(g) :
73. It is the contention of the District Collector that the land
admeasuring Acs.484.31 gts. in Survey No.80 of Hafeezpet Village is
in possession of the Government and that the petitioner has not filed
any documentary evidence to substantiate that M/s. Greater Golconda
Estates Pvt. Ltd. and 8 others have acquired Acs.50.00 in Survey
No.80/D.
Consideration by the Court of Contention No.(g) :
74. After the order was passed in Application No.132 of 2010 on
26.02.2010, there was a modification of the same in Application
No.500 of 2014 on 04.06.2014 and the sketch plan was amended, and
pursuant to the same possession was handed over on 25.04.2015 of
Acs.47.00 in Sy.No.80/D of Hafeezpet Village to the nine parties to
the compromise (referred to parties of the 1st Part) on 25.04.2015
under a Panchanama conducted by Advocate-Receivers – cum –
Commissioners by this Court in C.S.No.14 of 1958.
75. The State cannot refuse to take note of the orders passed by the
High Court and also delivery of possession by Officers of this Court
to the parties to the compromise and it cannot continue to insist that
the same is not evidence of their title or possession. MSR,J & TVK,J ::36:: wp_20707_2018&batch
76. In fact, in para no.16 of the counter-affidavit filed by the
District Collector in W.P.No.12548 of 2020, he stated that his field
staff stopped illegal construction over 1500 Sq.Yds. of land in
Sy.No.80 by the petitioner. This itself is an admission by the State
that the petitioners are in possession.
77. When the land in Hafeezpet village has been held in the
preliminary decree dt.26.08.1963 to be private land and not land of the
State Government, it was the duty of the Revenue officials of the State
Government to take note of the same and properly reflect ownership
and possession in the Revenue Records. More so, when a Memo
No.28908 / JA.1 / 2004 – 01 dt.05.11.2004 was already issued by the
State of Andhra Pradesh (the predecessor of the State of Telangana)
permitting the Collector, Ranga Reddy District to effect mutation in
land records in respect of land in Survey No.80 of Hafeezpet Village
taking note of the declaration of title of private parties in the
preliminary decree passed in C.S.No.14 of 1958.
78. So, the District Collector, Ranga Reddy and his subordinates
and other officials of the State Government cannot still insist about
their possession on the basis of the Revenue Records which they
deliberately did not alter in spite of the said Memo. It amounts to the
State taking advantage of its own wrong, which is not permissible in
Law. MSR,J & TVK,J ::37:: wp_20707_2018&batch
79. In the order dt.27.11.2020, passed in Writ Petition Nos.14881
and 14885 of 2020, this Court had held that the State did not deny that
the respondents had granted construction permission for high rise
buildings to M/s. Prajay Engineers Syndicate Limited for an extent of
20 acres, to M/s. Mahendra Constructions Company Limited for an
extent of 10 acres, to M/s. Adithya Constructions Company Limited
for an extent of 10 acres and to M/s. G.K. Constructions also in
Sy.No.80 of Hafeezpet village.
80. Therefore, the plea of the State that it is in possession of the
entire extent of land in Sy.No.80 of Hafeezpet Village is false to its
knowledge and is made only to mislead the Court.
Contention No.(h) :
81. It is contended by the State that in Application No.132 of 2010
in C.S.No.14 of 1958, the State Government is not made a party, that
the application was between individuals and such orders are not
binding on the Government. It is also contended that transactions
made over Government land are not valid under law and are null and
void.
Consideration by the Court of Contention No.(h):
82. We have already pointed out that the State had contested the
title to land in Hafeezpet Village in the preliminary decree stage itself
and lost it by 17.2.2001 on dismissal of OSA SR 3526 of 2000 and MSR,J & TVK,J ::38:: wp_20707_2018&batch
this order was confirmed on 16.7.2001 in SLP No.10622-23 of 2001.
So it cannot continue to say that the said land is Government land.
83. Such conduct is clearly vexatious and shows the scant regard it
has to decisions of this Court and the Supreme Court to which it was a
party.
Contention No.(i)
84. The State contended that after merger of State of Hyderabad in
Union of India after police action in 1948, H.E.H. The Nizam
submitted lists of his personal properties to the Government of India
in List Nos.I, II and III, declaring all the properties held by him,
which is called as ‘Blue Book’; and in these lists, the properties at
Hafeezpet Village including the subject land, is not listed. According
to the District Collector, the Government of India issued D.O.No.F2
(1) – H/ 50 dt.30.11.1955 accepting the said lists, except List No.III,
and that Hafeezpet Village is not found in this proceeding.
Consideration by the Court of Contention No.(i):
85. It is a matter of record that after the preliminary decree was
passed on 28.06.1963, the Decree Holders / Sharers (Plaintiff and
Defendants) in C.S.No.14 of 1958, who were entitled to 80% share in
the sale of suit schedule properties, in 1964 – 67, their decreetal rights
to H.E.H. The Nizam (defendant No.156) and Kasim Nawaz Jung
(Defendant No.157). Thereafter, H.E.H. The Nizam sold under a
registered Sale Deed dt.23.02.1967 his undivided half share to MSR,J & TVK,J ::39:: wp_20707_2018&batch
M/s. Dinshaw Company which was subsequently renamed as
M/s.Cyrus Investments Pvt. Ltd. and the said company was impleaded as Defendant No.206 in the suit. Thus, Kasim Nawaz Jung and Cyrus
Investments Pvt. Ltd. became entitled to 80% of the suit schedule properties.
86. As per the scheme of partition prepared by the Advocate-
Commissioner and the Revenue Divisional Officer in Application
No.139 / 1971, Kasim Nawaz Jung and Cyrus Investments were
allotted the entire extent of Sy.No.80 of Hafeezpet Village.
87. After the death of Kasim Nawaz Jung, his widow, viz.,
Basheerunnisa Begum and daughter Rasheedunnisa Begum were
added as defendant nos.334 and 335 in C.S.No.14 of 1958, and
inherited the share of Kasim Nawaz Jung.
88. Thereafter, defendant nos.206, 334 and 335 mutually divided
the entire land of Hafeezpet Village into equal halves and Sy.No.80/A
was allotted to defendant No.206, and land in Sy.Nos.80/B, 80/C, and
80/D were allotted to defendant nos.334 and 335. In Sy.No.80/D, the
share of defendant nos.334 and 335 was purchased by 12 parties and
they were allotted Acs.47.00 in Sy.No.80/D.
89. There was no occasion for H.E.H. The Nizam to disclose
about the lands in Hafeezpet Village in the lists he gave to the Union
of India in 1948 because he acquired them in 1964-67 along with MSR,J & TVK,J ::40:: wp_20707_2018&batch
Kasim Nawaz Jung by buying out all the
decree-holders / shareholders’ shares.
90. Therefore, non-mention of Hafeezpet Village in the ‘Blue
Book’ does not make any difference, and it cannot be said that he had
no right, title or interest in the land in Hafeezpet Village which he
could pass on to M/s.Cyrus Investments Ltd. on 23.02.1967.
Therefore, this plea of the State is made only to mislead this Court and
is thus also rejected.
Contention No.(j) :
91. It is next contended that no final decree had been passed in
respect of Hafeezpet Village and so petitioners are not entitled to any
relief.
Consideration by the Court of Contention No.(j) :
92. This plea is factually incorrect.
93. As pointed out above, even the order dt.26.02.2010 in
Application No.132 of 2010 in respect of Acs.50.00 in Sy.No.80/D is
in the nature of a final decree only.
94. Also in OSA.No.18 of 2010 on 01.02.2011, final decree was
passed in respect of Acs.115.00 in Sy.No.80/A of Hafeezpet Village
which was confirmed on 26.11.2013 in SLP.No.22420 of 2011 by the
Supreme Court. The State was a party to the said order. MSR,J & TVK,J ::41:: wp_20707_2018&batch
95. That apart, (i) in Application Nos.239 and 517 of 2009 final
decree was passed on 31.03.2010 by this Court in respect of the land
admeasuring Acs.57.33 Gts., in Sy.No.78 of Hafeezpet Village;
(ii) in Application No.1109 of 2007, another final decree was passed on 24.12.2007 in respect of Acs.40.00 in Sy.No.78 of Hafeezpet
Village.
96. The State is fully aware of the above final decrees passed in respect of land in Hafeezpet Village, but is deliberately misleading the
Court by saying that there is no final decree. Its stand is not bona fide.
Contention (k):
97. The respondents referred in the counter affidavit to order
dt.16.08.2018 of a Division Bench of this Court in W.P.Nos.11032,
11034 and 11037 of 2018 (which is reported in M/s. Trinity Infra
Ventures Limited Vs. State of Telangana9) and certain
findings/observations made therein. It is sought to be contended that
the observations made by the Supreme Court in the said case relating
to the validity of the preliminary decree and subsequent proceedings
in C.S.No.14 of 1958 are binding on this Court and this Court should
follow them.
9 2018 (6) ALD 160 (DB) MSR,J & TVK,J ::42:: wp_20707_2018&batch
Consideration by the Court of contention (k)
98. It is not in dispute that the above order in M/s. Trinity Infra
Ventures Limited (9 supra) was challenged by the said party in the
Supreme Court in SLP (C) Nos.24590-24592 of 2018, and the
Supreme Court on 05.10.2018 admittedly passed the following order:
“Heard the learned senior counsel for the parties. We are not inclined to interfere at this stage, as final decree is required to be passed. As agreed to, we make it clear that the observations made in the impugned order by the High Court shall not be used in any proceedings and shall not influence the High Court to pass final decree in accordance with law. The observations made are hereby diluted. The Special Leave Petitions are accordingly, disposed of. Pending applications, if any, stand disposed of.”
99. Moreover, when the order of the High Court dt.16.08.2018 in
W.P.Nos.11032, 11034 and 11037 of 2018 was prohibited to be used
in any proceedings by the Supreme Court in the order dt.05.10.2018 in
SLP (C) Nos.24590-24592 of 2018, the respondents cannot place any
reliance on them.
100. We may also point out that the said order in M/s. Trinity Infra
Ventures Limited (9 supra) related to land in Hasmathpet Village and not Hafeezpet Village. Also as pointed out above there are already final decrees passed in respect of Sy.No.80 of Hafeezpet Village and also in regard to Sy.No.78 of Hafeezpet Village. Therefore, the said order of the High Court in M/s. Trinity Infra Ventures Limited
(9 supra) has no relevance. MSR,J & TVK,J ::43:: wp_20707_2018&batch
101. We may also note that the counter affidavits of the State
Government officials like the District Collector, Ranga Reddy are
silent as what is the stand of the State of Telangana with regard to
claim of the Telangana Wakf Board and Sultan Ahsan-ud-Dowla and
the Dargah Hazrat Salar-e-Auliya in regard to Ac.140 in Sy.No.80 of
the Hafeezpet village. Even the Additional Advocate General
appearing for it did not make any submissions about it’s case vis-à-vis
these parties.
102. It thus appears to us that the contest between the State and the
Telangana Wakf Board and Sultan Ahsan-ud-Dowla and the Dargah
Hazrat Salar-e-Auliya is a sham contest and their intention seems to
be to somehow or other scuttle the claims of the petitioners.
103. We may also point out that in Application No.19 of 1973 and
Application No.114 of 1973 in C.S.No.14 of 1958 filed in respect of
Hydernagar and Hafeezpet lands, the State Government had taken a
stand that it was prepared to deliver possession of the said lands, but
were unable to do so due to some encroachments having come up in
those lands. This stand is noted in the order dt.05.07.1994 in
Application No.114 of 1973 (filed at page No.226 in W.P.No.12548
of 2020). Having taken such a stand, it is not open to the State to take
advantage of the efflux of time between 1994 and 2021 and increase
in value of the property, to do a volte face and claim that it belongs to
it. MSR,J & TVK,J ::44:: wp_20707_2018&batch
Conclusion as regards the claim of the State Government
104. Having regard to the above reasons, we reject all contentions
raised by the learned Additional Advocate General on behalf of the
State of Telangana and its Officers referred to in para-2 (ii) and hold
that it had no right, title or interest in the land situated in Sy.No.80 of
Hafeezpet village in any manner.
PART - B
Contention of the Telangana State Wakf Board, Sultan Ahsan-ud-Dowla and Dargah Hazrath Salar-e-Auliya (respondent Nos.1, 3 and 8 in W.P.No.20707 of 2018 and respondent Nos.2, 7 and 8 in W.P.No.12548 of 2020)
105. According to these respondents, Smt.Muneerunnisa Begum,
daughter of Nawab Mohd. Hafeezuddin Khan Bahadur Zafar Jung
Shams-ud-Dowla Shams-ul-mulk (for short, ‘Zafar Jung’) got
Ac.140.00 in Sy.No.80 of Hafeezpet village from her father; under a
Wakfnama dt.01-01-1955, she endowed it and made Wakf of the said
land and appointed her peer Hazrat Qasim Bin Abdullah Sulthan-us-
Salateen Khizri, Shaik-e-Hashami (paternal grand father of Sultan
Ahsan-ud-Dowla) as Mutawalli; based on the Wakfnama, a joint
survey was conducted by the Wakf and Reveue Departments of the
State; and after satisfying about the existence of the Dargah and Wakf
property attached to it, a Muntaqab bearing No.16/RR/Reg/2012 was
issued by the A.P State Wakf Board officially recognizing the Wakf
property through a Board Resolution No.936/213 dt.09-12-2013. MSR,J & TVK,J ::45:: wp_20707_2018&batch
106. According to the above respondents, the said Wakf along with
its property was registered as Wakf property on 13-12-2013 under
Section 36 of the Wakf Act, 1995 and the said facts were incorporated
in Col.No.5, Endowment Volume II, Telangana at page No.159,
Sl.No.37 as entered in F.No.16/RR/Reg/2012.
107. Thereafter according to the above respondents, the said Wakf
and the Wakf property were notified in the Telangana and Andhra
Pradesh Official Gazettes vide Notification No.79 and 13
dt.01-11-2014 and 27-03-2014, respectively.
108. It is contended that Sultan Ahsan-ud-Dowla was appointed
Mutawalli of the Dargah Hazrat Salar-e-Auliya under Section 63 of
the Wakf Act, 1995 and thereafter he continued as Mutawalli under
Section 42 of the Wakf Act, 1995 vide proceedings issued on
08-06-2017 which was published in the Gazette on 17-08-2017.
109. It is the case of these respondents that extent of Ac.140.00 in
Sy.No.80 of Hafeezpet village is Wakf property by virtue of
registration of the same as a Wakf property under Section 36 of the
Wakf Act, 1995. It is contended that under Section 36, the Wakf
Board has power to register a Wakf property, and it had followed the
procedure contemplated in the said provision and registered it as Wakf
property and published it in the Gazette. MSR,J & TVK,J ::46:: wp_20707_2018&batch
110. It is also contended that petitioner has effective alternative remedy under Section 83 of the Wakf Act, 1995 and the Writ Petition is not maintainable.
111. It is contended that suppressing the existence of Wakf in
Ac.140.00 of Sy.No.80 of Hafeezpet village since 01-01-1955,
predecessors-in-title of petitioners in W.P.No.20707 of 2018 and
W.P.No.12548 of 2020 obtained a collusive compromise decree on
26-02-2010 in Application No.132 of 2010.
112. Reference is made to the Division Bench judgment of this
Court in Shahnaz Begum Vs. M.S.Murthy and others10 in
O.S.A.No.54 of 2004 and batch and certain observations made therein.
Consideration by the Court of the above contentions
113. There are several circumstances, which we shall point out, for
not accepting the pleas of these respondents.
(A) No evidence about how Zafar Jung, father of Smt.Muneerunnisa Begum got the Ac.140 on Sy.No.80 of Hafeezpet village
114. In the Wakfnama dt.01-01-1955, there is no recital as to how
Zafar Jung, father of Smt. Muneerunnisa Begum, had gifted her
Ac.140.00 in Sy.No.80 of Hafeezpet village. Normally a gift of
immoveable property is required to be done through a registered
document (Sec.123 of the Transfer of Property Act, 1882). There is
no such registered Deed. No material is placed on record to
10 2020 (3) ALD 528 (DB) MSR,J & TVK,J ::47:: wp_20707_2018&batch
substantiate the factum of gift and delivery of the property by him to
Smt. Muneerunnisa Begum.
115. The preliminary decree dt.28-06-1963 in C.S.No.14 of 1958
shows that Smt.Muneerunnisa Begum had two sisters Bahadurunnisa
Begum (defendant No.32) and Karimunneesa Begum (defendant
No.33). All of them got 7/192 share from their father Zafar Jung and
1/384 share from their deceased sister Noorunnisa Begum, and thus
they each got 15/384 share. Thus even Smt.Muneerunnisa Begum
was to get a major share only through her father.
116. How Zafar Jung got title to Acs.140.00 in Sy.No.80 of
Hafeezpet Village even before the preliminary decree was passed in
C.S.Noi.14 of 1958, and why he chose only Smt.Muneerunnisa
Begum to give Ac.140 in Sy.No.80 of Hafeezpet village and not her
other 3 sisters, is also not explained.
(B) Non-mention of wakf nama dt.1.1.1955 by Smt.Muneerunnisa Begum in her written statement in C.S.No.14 of 1958
117. It is admitted by the Telangana State Wakf Board and its
supporting respondents that Smt.Muneerunnisa Begum, who allegedly
executed the Wakfnama on 01-01-1955 endowing to Wakf, the
Ac.140.00 in Sy.No.80 of Hafeezpet village, is a party (as Defendant
No.34) in C.S.No.14 of 1958 and that in the preliminary decree she
was allotted 15/384 share. (para 6 of the counter affidavit filed by
Respondent no.7 in WP.No.20707 of 2018, para 7 of the Addl.
Counter affidavit filed by the Telangana State Wakf Board in MSR,J & TVK,J ::48:: wp_20707_2018&batch
WP.No.20707 of 2018, para 18 of the Counter affidavit filed by the
Telangana State Wakf Board in W.P.12548 of 2020) and para 22 (ii)
of the Counter affidavit filed by Respondents 7 and 8 in
WP.No.12548 of 2020).
118. We sought to know from Sri D.V.Seetharama Murthy, learned
Senior Counsel appearing for the Telangana Wakf Board and Sri
A.M.Qureshi, learned counsel appearing for the Mutawalli Sultan
Ahsan-ud-Dowla and the Dargah Hazrat Salar-e-Auliya, whether
Smt.Muneerunnisa Begum had filed a written statement in C.S.No.14
of 1958 as defendant No.34 therein, and if so, whether she had
mentioned in the said written statement that she got Ac.140.00 in
Sy.No.80 of Hafeezpet village from her father and she had created a
Wakf of the same under the Wakfnama dt.01-01-1955.
119. They admitted that she did not disclose the fact that she got
Ac.140.00 in Sy.No.80 of Hafeezpet village from her father and she
had created a Wakf of the same under the Wakfnama dt.01-01-1955 in
the written statement filed by her in C.S.No.14 of 1958.
120. No reason was assigned why she did not mention it in the
written statement. It was necessary for her to mention these facts
because the Court would have then enquired into it and would have
deleted the said area when it passes the final decree.
MSR,J & TVK,J ::49:: wp_20707_2018&batch
(C) Smt.Muneerunnisa Begum had not got any final decree in C.S.No.14 of 1958 allotting Ac.140 in Sy.No.80 of Hafeezpet village to her though she was given 15/384 share in the properties which are subject matter of C.S.No.14 of 1958
121. An attempt is made by the learned counsel for these
respondents to trace the title of Smt. Muneerunnisa Begum to the
Ac.140.00 of land in Sy.No.80 of Hafeezpet village to the preliminary
decree dt.28-06-1963 in C.S.No.14 of 1958, though there are
pleadings in their counter affidavits that the orders in C.S.14 of 1958
are not binding on them.
122. When Smt. Muneerunnisa Begum is, according to the
Telangana Wakf Board and it’s allies, supposed to have got right in
Ac.140 in Sy.No.80 of Hafeezpet village by virtue of proceedings in
C.S.14 of 1958, and the Telangana Wakf Board is claiming the said
property as wakf property on the basis of her wakfnama dt.1.1.1955,
they cannot attack the orders in C.S.No.14 of 1958 at all. They are
estopped from doing so. When she herself did not question the orders
in C.S. No.14 of 1958, the Wakf Board and it’s allies cannot question
them.
123. To a specific question put to the learned counsel for these
respondents as to whether Muneerunnisa Begum applied for passing
of final decree in C.S.No.14 of 1958 for her 15/384 share of the
schedule mentioned properties including Hafeezpet village, they
stated that she did not do so. MSR,J & TVK,J ::50:: wp_20707_2018&batch
124. If Smt.Muneerunnisa Begum, the author of the Wakfnama
dt.01-01-1955, had not got any specific property including the
property of Acs.140.00 in Sy.No.80 of Hafeezpet Village through a
final decree in C.S.No.14 of 1958, we are unable to understand how,
even before the filing of C.S.No.14 of 1958 for partition, she could
have executed the Wakfnama dt.01-01-1955 for that property.
(D) The Wakfnama dt.1.1.1955 does not contain her signature but only her thumb impression though she put her signature in a later regd.sale deed dt.4.7.1966
125. Also, the Wakfnama dt.01-01-1955 does not bear the signature
of the executant Smt.Muneerunnisa Begum and it is mentioned that
she affixed her thumb mark only because her hands got burnt
accidentally and she did not sign it.
126. Learned counsel for petitioner had filed (at pg.410-442 of the
material papers in W.P.20707 of 2018 along with the reply affidavit to
the counter of respondent no.4) registered sale deed
Doc.No.1978/1966 dt.04-07-1966 executed by Smt.Muneerunnisa
Begum in favour of the HEH Nizam of Hyderabad and Kasim Nawaz
Jung wherein she accepted that there was a compromise between
some parties on 16-08-1961, that on account of other sharers not
joining the compromise, there was a preliminary decree passed, but
there were subsequent proceedings pending, and a final decree was
not passed, and she is selling the shares she secured in C.S.No.14 of
1958 to the purchasers after taking Rs.50,400/-. In this sale deed, she
had put her signature. MSR,J & TVK,J ::51:: wp_20707_2018&batch
127. It is not in dispute that Smt.Muneerunnisa Begum is not alive
any more and it is difficult to ascertain at this point of time whether
she did execute the Wakfnama dt.01-01-1955 or not. It is also
difficult to ascertain at this point of time whether the thumb mark on
this document is really that of Smt.Muneerunnisa Begum.
128. Moreover, the recitals in the regd. sale deed dt.4.7.1966 show
that she had sold her entire share allotted as per the preliminary decree
in C.S.No.14 of 1958 even before she had got a final decree. So she
did not retain any property for herself after 4.7.1966.
129. This registered sale deed dt.04.07.1966, in our opinion, covers
the share in the land in Hafeezpet Village also, but the sale deed does
not mention about land in respect of which Wakf was allegedly
created by her on 01.01.1955 and exclusion of the said land therefrom.
130. So, the Telangana State Wakf Board cannot say that the land
which is subject matter of the Waqfnama dt.01.01.1955 is the land she
got in C.S.No.14 of 1958.
(E) There is no proof of possession by these respondents of Ac.140.00 in Sy.No.80 of Hafeezpet village for more than 60 years
131. Learned counsel for the Telangana State Wakf Board and it’s
allies were asked to show possession and enjoyment by the Dargah or
the A.P State Wakf Board of this land of Ac.140.00 in Sy.No.80 of
Hafeezpet village at any point of time after 01-01-1955 and were
confronted with the several pahanis filed by the State Government MSR,J & TVK,J ::52:: wp_20707_2018&batch
which did not show that any portion of Sy.No.80 was Wakf property or was in possession of the Dargah. They could not point out any material for the last 60 years to show the possession of the said land by the Dargah.
132. It is not in dispute that the Chief Executive Officer of A.P. State
Wakf Board had addressed a letter to the Tahsildar, Ranga Reddy
District on 09-01-2015 and 31-01-2015 to demarcate and fix the
boundaries of the Ac.140.00 in Sy.No.80 of Hafeezpet village which
is registered and notified as Wakf property and he also wrote a letter
dt.24-07-2015 to the Assistant Director, Survey and Land Records,
Ranga Reddy District for conduct of joint survey along with Wakf
Board Surveyor to fix the boundaries of this land.
133. When no action was taken, Sultan Ahsan-ud-Dowla, the
Mutwalli of Dargah Hazrath Salar-e-Auliya filed W.P.No.34686 of
2016 in this Court impleading the District Collector, Ranga Reddy
District, Tahsildar, Serilingampalli Mandal and the Telangana State
Wakf Board as parties and sought a direction to the Revenue Officials
to dispose of the representations and cause survey and demarcation of
Acs.140.00 of land in Sy.No.80 of Hafeezpet village.
134. The said Writ Petition was allowed on 26-10-2016 without any
contest by the respondents therein and the District Collector then
issued letter dt.31-01-2017 for conduct of survey. MSR,J & TVK,J ::53:: wp_20707_2018&batch
135. Thereafter joint survey was conducted on 24-08-2017 based
allegedly on the Wakfnama dt.1.1.1955 by the Revenue and Wakf
Board officials and boundaries were fixed; later there was another
survey on 17.11.2018 also by the Deputy Collector and Tahsildar,
Serilingampally Mandal, Ranga Reddy District along with the
Assistant Director of Survey and Land Records, Ranga Reddy District
and demarcation was done; and a sketch was then supplied vide
proceedings Rc.No.A3/221/2018 dt.31-01-2019 by the Assistant
Director, Survey and Land Records, Ranga Reddy District to the
District Collector, Ranga Reddy District. These are admitted facts.
136. These facts indicate that till 31-01-2019, these respondents
were not even aware of the location of the Ac.140.00 of land allegedly
endowed to the Wakf on 01-01-1955 by Smt.Muneerunnisa Begum.
137. When the location of this Ac.140.00 was not known to these
respondents from 01-01-1955 to 31-01-2019, it cannot be said that
there was any Wakf of this land at all because there was never any
possession of the said land with these respondents.
(F) The surveys under the Wakf Act,1954 and Wakf Act,1995 did not take note of Acs.140.00 of land in Sy.No.80 of Hafeezpet village as a wakf property
138. We may point out that the Wakf Act, 1954 was in vogue when
the Wakfnama dt.01.01.1955 was executed by Smt. Muneerunnisa
Begum.
139. Section 4 of the said Act required the State Government to
appoint for the State a Commissioner of Wakfs and as many MSR,J & TVK,J ::54:: wp_20707_2018&batch
Additional and Assistant Commissioners of Wakfs as may be necessary for the purpose of making a survey of Wakf properties existing in the State at the date of commencement of the Act.
140. Under Section 25 the Wakf Board was enjoined to register any
Wakf whether created before or after the commencement of the Act
on an application for registration to be made by the Mutawalli.
Sub-section (8) of Section 25 stated that in case of Wakfs created
before the commencement of the Act, every application for
registration shall be made, within three months from such
commencement and in the case of Wakfs created after such
commencement, within three months from the date of creation of the
Wakf.
141. No reason is assigned why the then Mutawalli of the Dargah
Hazrat Salar-E-Auliya did not get the property of Ac.140.00 in
Sy.No.80 of Hafeezpet Village allegedly endowed to the said Dargah
registered from 01.01.1955 till 2013.
142. The Wakf Act, 1954 was repealed by the Wakf Act, 1995
which came into effect from 01.01.1996.
143. Similar provisions relating to survey of Wakfs are contained in
Section 4 of the Wakf Act, 1995 and under sub-Section (1) of Section
4 thereof, Survey Commissioners appointed by the State had to make
a survey of Wakfs in the State. If such a survey was done, why the
Wakf created by Smt. Muneerunnisa Begum was not noticed by the MSR,J & TVK,J ::55:: wp_20707_2018&batch
Survey Commissioner or other employees at all, and why it was not
included in the list of Wakfs to be published by the State under
Section 5 of the Act till December, 2013, is not explained by the
respondents.
(G) Non conduct of inquiry under sub-section (7) of Sec.36 of the Wakf Act,1995 vitiates the registration of the subject land as Wakf property on 13-12-2013 under sec.36 of the said Act.
144. Section 36 of the Wakf Act, 1995 states:
“36. Registration.—(1) Every waqf, whether created before or after the commencement of this Act, shall be registered at the office of the Board. (2) Application for registration shall be made by the mutawalli: Provided that such applications may be made by the waqf or his descendants or a beneficiary of the waqf or any Muslim belonging to the sect to which the waqf belongs. (3) An application for registration shall be made in such form and manner and at such place as the Board may by regulation provide and shall contain following particulars:— (a) a description of the waqf properties sufficient for the identification thereof; (b) the gross annual income from such properties; (c) the amount of land revenue, cesses, rates and taxes annually payable in respect of the waqf properties; (d) an estimate of the expenses annually incurred in the realisation to the income of the waqf properties; (e) the amount set apart under the waqf for— (i) the salary of the mutawalli and allowances to the individuals; (ii) purely religious purposes; (iii) charitable purposes; and (iv) any other purposes; (f) any other particulars provided by the Board by regulations. MSR,J & TVK,J ::56:: wp_20707_2018&batch
(4) Every such application shall be accompanied by a copy of the waqf deed or if no such deed has been executed or a copy thereof cannot be obtained, shall contain full particulars, as far as they are known to the applicant, of the origin, nature and objects of the waqf. (5) Every application made under sub-section (2) shall be signed and verified by the applicant in the manner provided in the Code of Civil Procedure, 1908 (5 of 1908) for the signing and verification of pleadings. (6) The Board may require the applicant to supply any further particulars or information that it may consider necessary. (7) On receipt of an application for registration, the Board may, before the registration of the waqf make such inquiries as it thinks fit in respect of the genuineness and validity of the application and correctness of any particulars therein and when the application is made by any person other than the person administering the waqf property, the Board shall, before registering the waqf, give notice of the application to the person administering the waqf property and shall hear him if he desires to be heard. (8) In the case of auqaf created before the commencement of this Act, every application for registration shall be made, within three months from such commencement and in the case of auqaf created after such commencement, within three months from the date of the creation of the waqf: Provided that where there is no board at the time of creation of a waqf, such application will be made within three months from the date of establishment of the Board. . ….” (emphasis supplied)
145. Therefore, before registering a Wakf under Section 36 on the basis of an application made by the Mutawalli, the Wakf Board has to make enquiries in respect of genuineness and validity of the application and correctness of particulars therein.
146. Thus, the A.P. State Waqf Board should have verified whether
Smt.Muneerunissa Begum was really the owner of the Acs.140 of MSR,J & TVK,J ::57:: wp_20707_2018&batch
land in Sy.No.80 of Hafeezpet village and whether it was really
Smt.Muneerunissa Begum who executed the Wakfnama
dt.01.01.1955, why no revenue record proves that it was a wakf
property, and why for the previous 58 years, no attempt had been
made to register it.
147. Learned counsel for these respondents were specifically asked
by the Court, having regard to the above suspicious circumstances,
what sort of enquiries the A.P State Wakf Board did, before
registering the Ac.140.00 in Sy.No.80 of Hafeezpet village as Wakf
property on the basis of the Wakfnama dt.01-01-1955 allegedly
executed by Smt.Muneerunnisa Begum.
148. Except saying that enquiries were made and proper procedure
was followed, no material is placed before this Court to believe that
there were any enquiries done at all by the A.P State Wakf Board
before registering this property under Section 36 of the Wakf Act,
1995.
149. No public notice appears to have been issued inviting
objections from persons interested in the property to object to the
registration of the said property as Wakf property under Section 36 of
the said Act.
150. In Hazarath Ameer Sha Vali Dargah Association v. State of
Andhra Pradesh and others11, one of us (MSR,J) had occasion to
11 MANU/AP/0743/2016 = (2016) 6 ALD 752 MSR,J & TVK,J ::58:: wp_20707_2018&batch
consider Section 36 of the Wakf Act, 1995 and had held that under
sub-section (7) of Section 36, it was incumbent on the part of the A.P.
State Wakf Board to make enquiries as to the genuineness and validity
of the application made by the applicant to treat the subject property
as a wakf property.
In fact, in that case a Notification had been issued by the Wakf
Board inviting objections and the Writ Petitioner therein had filed
such objections specifically stating that there was a Civil Court decree
obtained by him on 03.11.1999 against the Wakf Board. But without
considering the said objections, a Muntakhab had been issued by the
Wakf Board. This Court held that the Wakf Board clearly violated
sub-section (7) of Section 36 of the Act and that the Wakf Board
cannot override, by an executive act, a Civil Court decree which attained finality under Section 36 of the Act.
151. In the facts of the present case also, it is our opinion that
without any enquiry about the ownership of the subject property by
Smt.Muneerunnissa Begum or her father Zafar Jung, and in the
absence of evidence of enjoyment by the Dargah of the said property
for more than 50 years, the A.P.State Wakf Board could not have
registered it as Wakf property at all. If such a negligent and careless
action is done by a body such as the Telangana Wakf Board, it is
possible that not just private properties, but any public property such
as Raj Bhavan or the High Court or the Secretariat would end up
being notified as Wakf properties. MSR,J & TVK,J ::59:: wp_20707_2018&batch
152. We are therefore constrained to hold that there was no enquiry
done in accordance with law by the A.P. Wakf Board under Sub-
Section (7) of Section 36 of the Wakf Act, 1995 before registering
Ac.140.00 of land in Sy.No.80 of Hafeezpet village as Wakf property.
153. In fact, it is our opinion that no reasonable person, in the
position of the A.P. Wakf Board, could have, on the basis of material
produced by Sultan Ahasan-ud-Dowla, the alleged Muthawali and
Sajjadanashin of the Darga Hazrath Salar – E – Auliya, accepted that
Zafar Jung actually owned Acs.140.00 in Sy.No.80 of Hafeezpet
Village, that he was entitled to gift it to his daughter
Smt. Muneerunissa Begum, and she did execute the Wakfnama on
01.01.1955 endowing the said property a Wakf property.
(H) No explanation for registering the land as Wakf Property on 13.12.2013 when the Wakf was created on 1.1.1955
154. We may also state that Sub-Section (8) of Section 36 of the
Wakf Act, 1995 is similar to Sub-Section (8) of Section 25 of the
Wakf Act, 1954 and it directs that in the case of a Wakf created before
the commencement of the Wakf Act, 1995, like the Wakf created
under the Wakfnama 01.01.1955 by Smt. Muneerunnisa Begum,
Application for registration should be made within three months from
the date of commencement of the Wakf Act, 1995, i.e., within three
months from 01.01.1996, i.e., before 01.04.1996.
155. No explanation is forthcoming from these respondents why this
time limit was not adhered to while registering the Wakf created MSR,J & TVK,J ::60:: wp_20707_2018&batch
under the Wakfnama 01.01.1955 by Smt. Muneerunnisa Begum on
13.12.2013, eighteen years after the Wakf Act, 1995 came into force.
(I) Sec.107 or Sec.108 A of the Wakf Act, 1995 are not attracted
156. It is contended by the Telangana State Wakf Board and it’s
allies that Section 107 of the Wakf Act, 1995 makes Limitation Act,
1963 inapplicable to Wakf properties and under Section 108A of the
Wakf Act, 1995, the said Act overrides any other statute which is
inconsistent with it; and therefore the delay in registration of the Wakf
till 2013 though it was created on 01.01.1955, has no bearing on the
matter.
157. This contention is misconceived because the Limitation Act,
1963 is inapplicable for initiation of proceedings such as eviction,
etc., under the Act in relation to Wakf property. But when the Wakf
Act itself in Section 36(8) fixes a time limit, it has to be adhered to
and Section 108A cannot be invoked. While we are not saying that the
time limit in Section 36(8) is mandatory, there has to be valid
explanation for the inordinate delay in registering the Wakf in 2013
when it was created in 1955.
(J) The concept ‘once a wakf, always a wakf’ is not attracted
158. It is then contended by these respondents that registration of
the Wakf is not important, and property which belongs to Wakf will
always retain its character as Wakf; and so the Ac.140.00 in Sy.No.80
of Hafeezpet Village which was endowed on 01.01.1955 as wakf MSR,J & TVK,J ::61:: wp_20707_2018&batch
property by Smt.Muneerunissa Begum continued to be Wakf property, and its nature cannot be changed as private property.
Consideration of contention (J) by the Court
159. In our opinion, Smt. Muneerunnisa Begum or her father are not
shown by the respondents to have any valid title to this land in
Sy.No.80 of Hafeezpet Village prior to 01.01.1955.
160. Smt. Muneerunnisa Begum did not even apply for a final
decree for allotment of this Ac.140.00 to her share as per her 15/384
share in the preliminary decree dt.28.06.1963 passed in C.S.No.14 of
1958.
161. When she had no right in the land, she cannot create a Wakf
and endow this land to the Dargah.
162. So the principle “once a property is a Wakf, it always remains
Wakf” is not attracted in the instant case.
(K) Observations and findings in Shahanaz Begum (10 supra) have no relevance to the instant cases :
163. Shanaz Begum (10 supra) also arose out of C.S.No.14 of 1958
pending on the file of this Court, but it related to Sy.No.172 of
Hydernagar Village, Balanagar Mandal of Ranga Reddy District and
not Hafeezpet Village, Serilingampally Mandal of Ranga Reddy
District. MSR,J & TVK,J ::62:: wp_20707_2018&batch
164. Certain claim petitions filed under Order 21 Rule 97 C.P.C.
filed by third parties to the suit had been allowed by a common order
dt.26.10.2004 by a learned single Judge of this Court. This order had
been set aside by a Division Bench of this Court on 23.06.2006 in
O.S.A.Nos.52 to 59 of 2004.
165. The order dt.23.06.2006 was challenged in Civil Appeal
Nos.3327 of 2014 and batch in the Supreme Court. The Supreme
Court set aside the order of the Division Bench on 05.03.2014 and
remanded the O.S.A.s back to this Court.
166. It was specifically contended by the third parties, who had filed
the claim petitions, that they were in possession and enjoyment of the
land in Sy.No.172 of Hydernagar Village and their predecessors in
title had been granted pattas by the Revenue Secretariat of H.E.H. The
Nizam of Hyderabad in 1947 itself; that this land did not belong to
Kurshid Jah Paigah or his legal heirs or the State Government, and it
was not available for partition to the legal heirs of Kurshid Jah. Their
pleading was that the preliminary decree in C.S.No.14 of 1958 in
regard to the land in Sy.No.172 of Hydernagar Village was obtained
without impleading the occupants and pattedars of the said land, that it
was a collusive decree and was obtained by playing fraud on the
Court.
167. This Court ultimately agreed with the contentions of the third
party claimants that in relation to land in Sy.No.172 of Hydernagar MSR,J & TVK,J ::63:: wp_20707_2018&batch
village, orders were procured in C.S.No.14 of 1958 behind their back without impleading them and the said orders were collusive in nature.
It held that the land in Hydernagar Village was Jagir land, but prior to
1948, pattas were granted to cultivating ryots by the Revenue
Secretariat of H.E.H. The Nizam in 1947; that title to this land passed to the cultivating ryots prior to 1948 itself and they had validly conveyed title to the claim petitioners. It also held that the land in
Hydernagar Village did not vest in the State Government after the
Hyderabad Jagirdar Regulation Abolition, 1358 Fasli came into operation; and the Revenue Department of the later State Government accepted these pattas as genuine and implemented the same by issuing
a sethwar in 1947 and also a Faisal Patti of 1978-79.
168. This Court held that in proceedings under Order 21 Rule 97 to
101 of C.P.C., the executing court can also consider the question
whether a decree is binding on the objector / claim petitioner as well
as the question whether the decree was obtained by playing fraud on
the Court or a party. It held that the decree holders failed to show that
the land in Sy.No.172 of Hydernagar Village was the Matruka
property of Kurshid Jah Paigah. It declared Order dt.24.04.1998
passing final decree in Application No.517 of 1998 in C.S.No.14 of
1958 as null and void and even the preliminary decree dt.28.06.1963
in C.S.No.14 of 1958, insofar as lands in Sy.No.172 of Hydernagar
Village is concerned, was procured by playing fraud on the Court. MSR,J & TVK,J ::64:: wp_20707_2018&batch
169. Whatever observations were made by this Court in Shahanaz
Begum (10 supra) were specifically made only in the context of the
special facts in relation to Sy.No.172 of Hydernagar Village only, and
they cannot be read out of context by the respondents and made
applicable to land in Hafeezpet Village as well.
170. Moreover, in the said case, there was a direct attack on the
preliminary decree and other orders passed in regard to the said land
by third parties in possession of the land in Sy.No.172 of Hydernagar
village in appeals arising out of orders passed under Order 21 Rule 97
to 101 C.P.C. by the learned single Judge.
171. But, in the instant case, there is only a collateral attack, which is
impermissible.
172. Therefore, none of the respondents can rely upon the judgment
in Shahanaz Begum and others (10 supra) for any purpose in
relation to land in Sy.No.80 of Hafeezpet Village.
(L) The Writ Petitions are not barred by existence of alternative remedy under Sec.83 of the Wakf Act,1995
173. Lastly we shall consider the maintainability of the Writ
Petitions under Article 226 of the Constitution of India in this Court.
174. It is the contention of the respondents that petitioners have an
effective alternative remedy under Section 83 of the Wakf Act, 1995
and that the present Writ Petitions are therefore not maintainable. The
counsel for 2nd respondent contended that the petitioner ought to MSR,J & TVK,J ::65:: wp_20707_2018&batch
approach the Wakf Tribunal constituted under Section 83 of the Act to challenge the impugned Munthakhab and that a Writ Petition under
Article 226 of the Constitution of India is not maintainable. Strong reliance was placed on the decision in Board of Wakf, West Bengal v. Anis Fatma Begum and another12.
175. We do not agree with this contention for more than one reason.
176. As stated in the beginning of this order there is a three pronged
fight between the petitioners, the State Government and the Telangana
Wakf Board.
177. While the Wakf Tribunal constituted under the Act can decide
the nature of the Wakf property, it cannot decide inter se dispute
between the petitioners and the State Government because no such
jurisdiction is conferred on it. So the remedy of filing a suit before the
Wakf Tribunal it is not an effective alternative remedy in the
circumstances of the case where the State and the Wakf Board both
also claim this land.
178. That apart, judicial review is part of the basic structure of the
Constitution of India. It is settled law that no statute can explicitly or
implicitly exclude judicial review by the High Court under Article 226
of the Constitution of India. The Wakf Act, 1995 also contains no
exclusion of judicial review by the High courts under Art.226 of the
Constitution of India. It is not possible to infer an absolute exclusion
12 2011 (1) ALD 61 (SC) MSR,J & TVK,J ::66:: wp_20707_2018&batch
of judicial review by the High Court under Art.226 of the Constitution of India as regards the statutory actions of a Wakf Board, such as the one under Sec.36 of the Wakf Act, 1995, in the current Constitutional scheme.
179. As long back as in 1998, the Supreme Court in Whirlpool
Corporation v. Registrar of Trademarks, Mumbai and others13, had declared that existence of alternative remedy would not operate as a bar to entertainment of a Writ Petition under Article 226 of the
Constitution of India where (i) the Writ Petition has been filed for enforcement of any of the Fundamental Rights or (ii) there has been a violation of principles of natural justice or (iii) the order or proceedings are wholly without jurisdiction and (iv) vires of an Act is challenged.
180. In ABL International Ltd. and another Vs. Export Credit
Guarantee Corporation of India Ltd. and others14, the Supreme
Court held that merely because one of the parties to the litigation
raises a dispute in regard to the facts of the case, the Court
entertaining a petition under Article 226 of the Constitution of India is
not always bound to relegate the parties to a suit; and that in an
appropriate case, Writ Court has jurisdiction to entertain a Writ
Petition involving disputed questions of fact and there is no absolute
bar for entertaining a Writ Petition even if the same arises out of a
13 (1998) 8 SCC 1 14 (2004) 3 SCC 553 MSR,J & TVK,J ::67:: wp_20707_2018&batch
contractual obligation and/or involves some disputed questions of fact.
It held that merely because a question of fact is raised, the High
Court will not be justified in requiring the party to seek relief by the
somewhat lengthy, dilatory and expensive process by a Civil Suit
against a Public Body.
181. In Syed Maqbool Ali v. State of U.P15, the Supreme
Court had held:
“When a writ petitioner makes out a case for invoking the extraordinary jurisdiction under Article 226 of the Constitution, the High Court would not relegate him to the alternative remedy of a civil court, merely because the matter may involve an incidental examination of disputed questions of facts. The question that will ultimately weigh with the High Court is this: whether the person is seeking remedy in a matter which is primarily a civil dispute to be decided by a civil court, or whether the matter relates to a dispute having a public law element or violation of any fundamental right or to any arbitrary and high-handed action. (See the decisions of this Court in ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. (13 supra) and Kisan Sahkari Chini Mills Ltd. v. Vardan Linkers16.)”
182. In C.I.T v. Chhabil Dass Agarwal17 also the Supreme Court
declared:
“It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant
15 (2011) 15 SCC 383 16 (2008) 12 SCC 500 17 (2014) 1 SCC 603 MSR,J & TVK,J ::68:: wp_20707_2018&batch
relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226....
The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted.”
183. In Popatrao Vyankatrao Patil Vs. State of Maharshtra and
others18, the Supreme Court held therein that when a petition involves
disputed questions of fact and law, the High Court would be slow in
entertaining the petition under Article 226 of the Constitution of India;
however it is only a rule of self-restraint and not a hard and fast rule; even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition under Article 226 of the Constitution.
It observed that such power is to be exercised in exceptional circumstances where the High Court finds that the action of the State or its instrumentality is arbitrary and unreasonable and as such violative of Article 14 of the Constitution of India. It applied the decision in ABL International (14 supra).
18 Civil Appeal No.1600 of 2020 decided on 14.02.2020 by a Three Judge Bench headed by Chief Justice of India, Justice B.R.Gavai and Justice Suryakant MSR,J & TVK,J ::69:: wp_20707_2018&batch
184. In Anis Fatima Begum (12 supra), cited by learned counsel for
respondents, the subject-matter of the dispute related to the
demarcation of the wakf property in two distinctive parts, one for
wakf-al-al-aulad and the remaining portion for pious and religious
purposes. The demarcation was challenged on the ground that it was
not in consonance with the provisions of the wakf deed.
The Supreme Court held that it is the Tribunal constituted under
Section 83 of the Act which will have exclusive jurisdiction to deal
with these questions inasmuch as these questions pertained to
determination of disputes relating to wakf property and the
jurisdiction of the civil court or High Court under Article 226 was
ousted.
In that context, the Supreme Court opined that in all matters pertaining to Wakfs, person aggrieved should approach the Wakf
Tribunal and the Civil Court should not entertain any matter.
185. There are other decisions which deal with exclusion of Civil
Court’s jurisdiction such as Ramesh Gobindram (Dead) Through
L.Rs. Vs. Sugra Humayun Mirza Wakf19, Bhanwar Lal v.
Rajasthan Board of Muslim Wakf20 and Faseela M. v. Munnerul
Islam Madrasa Committee21.
19 (2010) 8 SCC 726 20 (2014) 16 SCC 51 21 (2014) 16 SCC 38 MSR,J & TVK,J ::70:: wp_20707_2018&batch
186. In fact, the decision in Anis Fatma Begum (12 supra) was
considered both in Bhanwar Lal (20 supra) and in
Faseela M (21 supra) and the broad proposition laid down in Anis
Fatma Begum (12 supra) to the effect that all matters pertaining to
wakfs should be filed before the Wakf Tribunal only and should not
be entertained by the civil court or by the High Court under Article
226 of the Constitution of India was not approved. So the said
decision in so far as it holds that all matters pertaining to wakfs should
be only filed before the Wakf Tribunal, is therefore no longer good
law.
187. Even in Punjab Wakf Board v. Sham Singh Harike22, the
decision in Anis Fatma Begum (12 supra) was impliedly held to be per incurium by the Supreme Court. Even the said case dealt with only the issue exclusion of jurisdiction of the Civil Court and there is nothing contained in it excluding judicial review under Article 226 of the Constitution of India in relation to Wakf properties.
188. In the instant case, in our opinion, Smt. Muneerunnisa Begum
had no title to Ac.140.00 in Sy.No.80 of Hafeezpet Village as on
01.01.1955 when she allegedly executed the wakfnama endowing this
land as Wakf property. That apart, there is no valid explanation from
the Telangana State Wakf Board, Sultan Ahsan-ud-Dowla and the
Dargah Hazrat Salar-E-Auliya on the several aspects enumerated by
us as (A) to (K) supra.
22 (2019) 4 SCC 698 MSR,J & TVK,J ::71:: wp_20707_2018&batch
189. Also, the Wakfnama dt.01-01-1955 is not shown to have seen
the light of the day for the next 50 years after its alleged execution
before any forum, and appears to have been ‘discovered’ by these
respondents only after the State Government lost S.L.P. (C) No.22420
of 2017 on 26-11-2013 before the Supreme Court and the order
dt.01-02-2011 in O.S.A.No.18 of 2010 passed by this Court granting
final decree for Ac.116.00 in Sy.No.80 of Hafeezpet village was
upheld by the Supreme Court.
190. It is contended by the petitioners that the State Government set
up the Telangana State Wakf Board to pass a Board Resolution
No.936 of 2013 dt.09-12-2013, register the said property under
Section 36 of the Wakf Act, 1995 as Wakf property on 13-12-2013
and issue Muntaquab F.No.16/RR/Reg./2013 and publish it in the
gazette of Telangana State on 01-01-2014. We find considerable
force in the said submission of the petitioners for the following
reasons :
(a) While there is a clear conflict between the State of
Telangana and the Telangana State Wakf Board and each is
questioning the title of the other to the subject property in Sy.No.80 of
Hafeezpet Village, during the arguments, no effort is made by the
Additional Advocate General for the State of Telangana to question
the claims of the Telangana State Wakf Board;and by Sri
D.V.Sitarama Murthy, Senior Counsel for the Telangana State Wakf MSR,J & TVK,J ::72:: wp_20707_2018&batch
Board to question the claim of the State of Telangana, and it seemed that there is a sham contest between these two respondents.
(b) Also a common additional counter affidavit is filed on
behalf of the Telangana State Wakf Board and the State of Telangana
supporting the case of the Telangana State Wakf Board. This also
suggests strong possibility of collusion between both of them.
(c) We have already referred to the fact that the Chief
Executive Officer of A.P. State Wakf Board had addressed a letter to
the Tahsildar, Ranga Reddy District on 09-01-2015 and 31-01-2015
to demarcate and fix the boundaries of the Ac.140.00 in Sy.No.80 of
Hafeezpet village which is registered and notified as Wakf property
and he also wrote a letter dt.24-07-2015 to the Assistant Director,
Survey and Land Records, Ranga Reddy District for conduct of joint
survey along with Wakf Board Surveyor to fix the boundaries of this
land.
When no action was taken, Sultan Ahsan-ud-Dowla, the
Mutwalli of Dargah Hazrath Salar-e-Auliya filed W.P.No.34686 of
2016 in this Court impleading the District Collector, Ranga Reddy
District, Tahsildar, Serilingampalli Mandal and the Telangana State
Wakf Board as parties and sought a direction to the Revenue Officials
to dispose of the representations and cause survey and demarcations
of Ac.140.00 of land in Sy.No.80 of Hafeezpet village. MSR,J & TVK,J ::73:: wp_20707_2018&batch
The State of Telangana rep. by the District Collector, Ranga
Reddy District which was 1st respondent in this W.P. did not file any counter affidavit opposing grant of relief to the petitioner therein stating that the said land is Government Land and there was no necessity to conduct any survey. Had there been a bonafide contest between them, the State Government would have opposed the said
Writ Petition and refused to survey the land.
The said Writ Petition was allowed by this Court on
26-10-2016 and the District Collector then issued letter dt.31-01-2017 for conduct of survey and thereafter a joint survey was conducted on
24-08-2017 based allegedly on the Wakfnama dt.1.1.1955 by the
Revenue and Wakf Board officials and boundaries were fixed; that thereafter there was another survey on 17.11.2018 also by the Deputy
Collector and Tahsildar, Serilingampally Mandal, Ranga Reddy
District along with the Assistant Director of Survey and Land
Records, Ranga Reddy District and demarcation was done; and a sketch was then supplied vide proceedings Rc.No.A3/221/2018 dt.31-01-2019 by the Assistant Director, Survey and Land Records,
Ranga Reddy District to the District Collector, Ranga Reddy District.
These are admitted facts.
This shows the close cooperation extended by the officials of the Revenue and Survey Departments of State of Telangana to the
Telangana State Wakf Board to identify the Ac.140 in Sy.No.80 of
Hafeezpet village. MSR,J & TVK,J ::74:: wp_20707_2018&batch
In fact, the entire endeavour of the State of Telangana and the
Telangana State Wakf Board appears to be to deny the claim of
petitioners to the land in Sy.No.80 of Hafeezpet Village,
Serilingampally Mandal, Ranga Reddy District somehow or the other,
even if there exists conflicting claims inter se between them.
191. In view of the above facts and circumstances, and the above
referred conduct of the State of Telangana and it’s officials and the
Telangana State Wakf Board, it would be a travesty of justice to ask
the petitioners to avail the lengthy, dilatory and expensive process by
a Civil Suit before the Wakf Tribunal constituted under Sec.83 of the
Wakf Act, 1995.
There are, also in our opinion, no complicated questions of fact or law arising in the matter to compel the petitioners to avail the remedy before the Wakf Tribunal.
Also the actions of the A.P. State Wakf Board, the predecessor of the Telangana State Wakf Board in registering the land as Wakf property under Section 36 of the Act, without any enquiry under Sub- section (7) of Section 36 of the Act is clearly arbitrary, illegal and violates Article 14 and 300A of the Constitution of India.
So we hold that this Court is entitled to entertain W.P.No.20707 of 2018 and W.P.No.12548 of 2020, that the same are maintainable, and the petitioners need not avail the remedy under Sec.83 of the
Wakf Act, 1995. MSR,J & TVK,J ::75:: wp_20707_2018&batch
192. We also declare that the Telangana Wakf Board could not have
written a letter in File No.M/35/SMPC/2005 dt.16.06.2020 to the
respondents 5 and 6 in W.P.20707 of 2018/ Respondent no.6 in
W.P.No.12548 of 2020 prohibiting registrations of land in Sy.No.80
or 80/A to D of Hafeezpet Village, Serilingampally Mandal, Ranga
Reddy District as the said land does not belong to it or to the State
Government and the said letter is set aside.
Conclusion :
193. Accordingly,
(i) W.P.Nos.20707 of 2018, 9709 of 2020 and 12548 of 2020 are
allowed;
(ii) It is declared that the land in Sy.No.80 of Hafeezpet village,
Serlingampally Mandal, Ranga Reddy District is neither State
Government land nor is it Wakf property, and that it is private
property;
(iii) It is declared that the act of registration of Acs.140.00 in
Sy.No.80 of Hafeezpet Village, Serilingampally Mandal, Ranga
Reddy District as Wakf property attached to Dargah Hazrat
Salar-E-Auliya under Section 36 of the Wakf Act, 1995 by the
then A.P. State Wakf Board on 13.12.2013 is arbitrary, illegal
and violative of Article 14 and 300A of the Constitution of India
and also in violation of principles of natural justice, the Wakf
Act, 1995; and the said actions including Board Resolution MSR,J & TVK,J ::76:: wp_20707_2018&batch
No.936/2013 dt.09.12.2013 of the A.P. State Wakf Board,
Muntakhab F No.16/RR/REG/2013 published in Telangana
Gazette Part II, bearing No.79 dt.01.11.2014 wherein Muntakhab
was entered in Book of Endowment, Volume II at Page No.159,
at Serial No.37 in F.No.16/RR/REG/2013 dt.13.12.2013 was
published, are set aside and declared as null and void;
(iv) The Telangana State Wakf Board is directed to delete the entry
made in Column No.5, Book of Endowment Volume II,
Telangana at Page 159 and Serial No.37 in
F.No.16/RR/REG/2013 dt.13.12.2013 in respect of the land in
Sy.No.80 of Hafeezpet Village, Serilingampally Mandal, Ranga
Reddy District;
(v) Letter in File No.M/35/SMPC/2005 dt.16.06.2020 written by the
Telangana State Wakf Board to the Respondents 5 and 6 in
W.P.No.20707 of 2018/Respondent no.6 in W.P.No.12548 of
2020 objecting to registrations of alienations by way of sale, gift,
mortgage, conveyance etc., of land in Sy.No.80 or 80/A to D of
Hafeezpet Village, Serilingampally Mandal, Ranga Reddy
District, is set aside;
(vi) The respondents in all Writ Petitions including the
Tahsildar/Dy.Collector, Serilingampally Mandal, Ranga Reddy
District shall permit registrations under the Registration Act,
1908 of the above land by way of sale, gift, mortgage, MSR,J & TVK,J ::77:: wp_20707_2018&batch
conveyance etc without raising any objection that the said land
belongs to the State of Telangana or that it is Wakf property;
(vii) a direction is issued in W.P.No.9709 of 2020 to respondents 1, 3,
4 and 5 therein to delete the entries in the Revenue Records
showing land in Sy.No.80 of Hafeezpet Village, Serilingampally
Mandal, Ranga Reddy District as ‘Sarkari’ and recording the
State Government’s possession;
(viii) a direction is issued in W.P.No.9709 of 2020 to respondents 1, 3,
4 and 5 to sub-divide the land in Sy.No.80 of Hafeezpet village
into Sy.No.80/A, 80/B, 80/C and 80/D as per (a) order
dt.05-11-1970 in Application No.142 of 1970 in C.S.No.14 of
1958, (b) as per the decree dt.26-02-2010 in Application No.132
of 2010 in C.S.No.14 of 1958 as modified by the order dt.04-06-
2014 in Application No.500 of 2014 and (c) as per deed of
partition document No.2789 of 2016 dt.10-03-2016 between the
petitioner in W.P.No.12548 of 2020 and W.P.No.9709 of 2020;
(ix) respondent Nos.1, 3, 4 and 5 in W.P.No.9709 of 2020 are further
directed to mutate Ac.50.00 in Sy.No.80/D of Hafeezpet village,
Serilingampalli Mandal, Ranga Reddy District in favour of the
petitioner and his co-owners;
(x) the above actions (iv),(vi),(vii),(viii) and (ix) shall be carried out
within 4 weeks from the date of receipt of a copy of this order;
and MSR,J & TVK,J ::78:: wp_20707_2018&batch
(xi) The State of Telangana and it’s Officials and the Telangana State
Wakf Board and it’s employees are restrained from interfering
with the peaceful possession of the petitioners in respect of the
land claimed by them in Sy.No.80 or 80/D (forming part of
Sy.No.80) of Hafeezpet village, Serilingampalli Mandal, Ranga
Reddy District; and
(xii) the State of Telangana and the Telangana State Wakf Board shall
each pay Rs.50,000/- as costs to each of petitioners in W.P.20707
of 2018 and to the petitioner in W.P.9709 of 2020 within 4
weeks.
194. As a sequel, all miscellaneous applications in these cases, not
already ordered by the Court, shall stand rejected.
______M.S.RAMACHANDRA RAO, J
______T.VINOD KUMAR, J
Date: 30-03-2021
Note :-
Furnish CC by 31.03.2021.
L.R. Copy to be marked : YES
B/o. Svv/Vsv/Ndr