Telangana High Court
Smt. Amina Bee Died vs The State Of Andhra Pradesh on 28 July, 2025
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR W.P.Nos.20922 of 2009 & 30132 of 2010 and C.R.P.No.4191 of 2010 COMMON ORDER:
Since the issue involved in both the Writ Petitions is one and the
same and the issue involved in the Civil Revision Petition is also integrally
connected to the issue under consideration in the Writ Petitions, all the
three cases, viz., WPs and CRP, are being disposed of by this common
order.
W.P.No.20922 of 2009
2. The petitioner claims of he having purchased land to an extent of
Acs.3.08 guntas in Sy.No.797/A, an extent of Ac.1.07 guntas in
Sy.No.797/AA, in all admeasuring Acs.4.15 guntas, from its original
owners, Sri Raza Ali Shah S/o Maroof Ali Shah and Farath Ali Shah s/o
Maroof Ali Shah, under a registered sale deed dt.09.01.2001 for valuable
consideration and on purchase of the aforesaid land, the same was
mutated on to his name in revenue records; and that he was also issued
with pattadar pass book and title deeds by the concerned authorities.
3. It is the further case of the petitioner that thereafter, he had sold
land to an extent of Ac.1.15 guntas back to his vendors through a
registered sale deed and is in possession of land to an extent of Acs.3.00
guntas; that the petitioner’s vendors were owners and occupiers of land
which is a Inam land covered under Andhra Pradesh (Telangana Area)
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Abolition of Inams Act, 1955 (for short, ‘the Inams Act’); that the
petitioner’s vendors were granted Occupancy Rights Certificate (ORC) by
the competent authority, vide proceedings dt.17.07.1999 under the
relevant provisions of the Inams Act, after conducting enquiry; and that
there is no dispute with regard to nature of the land and rights of the
petitioner’s vendors over the land.
4. It is the further case of the petitioner that having purchased the
land initially to an extent of Acs.4.15 guntas and thereafter, having sold
away land to an extent of Ac.1.15 guntas, is in possession of the
remaining extent of land to an extent of Acs.3.00 guntas; and that
pursuant to the notification issued by Bharat Petroleum Corporation
Limited (BPCL) for opening of a retail petroleum outlet at Kodangal Town
and Village, he had applied for the dealership; and that the petitioner’s
application was accepted, and letter of intent was issued by BPCL, vide its
letter dt.28.03.2008.
5. It is the further case of the petitioner that on BPCL issuing letter of
intent, he had approached the concerned authorities, i.e. Revenue
Divisional Officer, Narayanpet (RDO), and the concerned police authorities
and obtained No Objection Certificate (NOC) for establishing a petroleum
retail; that after obtaining necessary permissions/sanctions from the
authorities concerned for setting up of retail petroleum outlet and also
having applied for conversion of the said land from agriculture to non-
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agriculture, on the petitioner undertaking steps to clean the area for the
purpose of setting up of petrol pump, some persons styling themselves as
Members of local Masjid Committee are trying to interfere with the
petitioner’s peaceful possession and enjoyment over the land admeasuring
Acs.3.00 guntas by claiming that the property belongs to Wakf Board;
that on the third parties creating obstacles, the petitioner had approached
the competent Court of Civil jurisdiction by filing a suit for injunction, vide
O.S.No.20 of 2009, and obtained ad interim injunction in I.A.No.188 of
2009 in O.S.No.20 of 2009; and that the said order of injunction is
subsisting as of date.
6. It is the further case of the petitioner that on his peaceful
possession and enjoyment being obstructed by the persons styling
themselves as Members of the local Masjid Committee and also having
regard to the stand of the Wakf Board in the suit, vide O.S.No.20 of 2009,
he made enquiries and learnt that the 2nd respondent herein had notified
the land in Sy.No.797 of Kodangal Village and published the same in
Gazette Settlement Part-II of A.P.Gazette No.4(A), dt.24.01.2002 along
with other survey numbers and also other properties of the entire
erstwhile Taluq of Kodangal as wakf property.
7. It is also the case of the petitioner that the land in Sy.No.797 is not
the wakf property either by usage or by registration or by gift as
contemplated under the provisions of the Wakf Act; that the subject lands
4
are nothing to do with any mosque or any other religious institution; that
the land purchased by the petitioner is an agricultural inam land belonging
to the petitioner’s vendors, who inherited from their father Maroof Ali
Shah; that the entire revenue records from Khasra 1954 onwards, the
property had shown as Inam land; and that the petitioner’s vendors were
conferred with the ownership rights under the provisions of the Inams Act.
8. It is also contended by the petitioner that the impugned notification
issued by the 2nd respondent under Section 4(3) and 5(2) of the Wakf Act
is totally illegal, arbitrary and against the principles of natural justice.
W.P.No.30132 of 2010
9. The case of the petitioners herein in brief is that they are the
owners, title holders and pattadars of various extents of agricultural land
in Sy.Nos.289, 290, 443, 444, 594, 597, 735 to 740, 765 to 769, 797, 800,
835 and 836 and are in possession and enjoyment of the same from their
fore-fathers; that the aforesaid land is shown as Inam land in the revenue
records; that after abolition of inams under the Inams Act, the petitioners
have made an application to the competent authority under the
provisions of the Inams Act to grant ORC; and that the competent
authority, after conducting thorough enquiry, had issued proceedings
dt.17.07.1999 conferring rights under the Inams Act and thereafter, the
petitioners were in possession and enjoyment of the same and their right
over the said land had been confirmed being in possession of the same.
5
10. It is the further case of the petitioners that out of the total extent
of land held by them, to meet family necessities they sold away some
extent of land to the third parties for a valuable consideration and the
third parties who had purchased the said lands are in occupation of the
same.
11. It is also the case of the petitioners that as per the entire records
and the Khasra Pahani for the year 1954, the lands have described as
Inam land and held in possession of the petitioners’ fore-fathers; that such
lands were never been shown as gift property or wakf property; that the
said lands were not connected to with any mosque or any other religious
institutions and are agricultural lands belonging to the petitioners inherited
from their fore-fathers; and that the petitioners’ fore-fathers were neither
gifted nor endowed the lands or any part thereof in favour of the 2nd
respondent at any point of time.
12. Petitioners further contend that to their surprise, a notification was
issued and published in the gazette of Andhra Pradesh Supplement to
Part-II No.4A dt.24.01.2002 indicating all the lands of the petitioners
covered by ORC granted in their favour are wakf properties under Section
4(3) and 5(2) of the Wakf Act.
13. Petitioners further contend that the action of the 2nd respondent on
the basis of the aforesaid notification is totally illegal, arbitrary and against
6
the principles of natural justice, as no enquiry was conducted by the Wakf
Board as contemplated under the Wakf Act and the Rules made
thereunder. Hence, the petitioners are questioning the issuance of the
gazette notification dt.24.01.2002.
C.R.P.No.4191 of 2010
14. The petitioners herein are same as in W.P.No.30132 of 2010.
15. Shorn of unnecessary details, the case of the petitioners in this Civil
Revision Petition in brief is that respondent Nos.1 and 2 styling themselves
as President and Vice-President of the local Jama Masjid Committee, filed
an appeal before the Joint Collector under Section 24(1) of the Inams Act,
questioning grant of ORC in their favour, on the ground that the land, in
respect of which ORC was granted to the petitioners, is a wakf property
and any alienation thereof is null and void; that respondent Nos.1 and 2
had relied upon the gazette notification dt.24.01.2002, wherein it was
notified that the properties mentioned therein belong to Muslim
community in the entire erstwhile Taluq of Kodangal; and that the Joint
Collector, without appreciating the records in proper perspective, allowed
the appeal setting aside the ORC granted in their favour on 17.07.1999
after a lapse of 11 years and remanded the matter back to the RDO for
conducting fresh enquiry. Challenging the said order of the Joint Collector,
dt.22.05.2010, the present Civil Revision Petition is filed.
7
16. The 2nd respondent – Wakf Board had filed separate counter-
affidavits in W.P.No.20922 of 2009 and 30132 of 2010.
17. By the counter-affidavit filed in W.P.No.20922 of 2009 by the 2nd
respondent, it is contended that the lands in Sy.No.797 admeasuring
Acs.5.15 guntas situated at Kodangal Village along with lands in other
survey numbers, in all totaling to an extent of Acs.95.00 guntas were
covered under Survey Commissioner’s Report at Serial No.7 of Kodangal
Teluka, Mahaboobnagar District and got published in Andhra Pradesh
Gazettee No.4-A dt.24.01.2002 at Sl.No.27078; that the entire survey
number 797 graves of Muslim persons are there from time immemorial;
that the lands were shown as Fakir Takia lands in Khasra Pahani 1954-55;
that the lands were surveyed by the Survey Commissioner under Section
4(3) of the Wakf Act and submitted report to the Wakf Board with a copy
forwarded to the State Government under Section 5(1) of the Wakf Act;
and that the State Government, after examining the report as forwarded
by the Wakf Board, published the same under Section 5(2) of the Wakf
Act in A.P. Gazette.
18. On behalf of the 2nd respondent by the counter-affidavit, it is
further contended that the said wakf lands are under the Dargah Hazarath
Mehar Pasha Saheb with graveyard under the Towliath of the then notified
Mutawalli – Sri Maroof Ali Shah; and that the aforesaid lands were
previously enjoyed by Mehar Ali Shah and Maroof Ali shah; that the entire
8
land in Sy.No.797 was in use as graveyard for burial of Muslim people
from Kodangal Village; that the vendors of the petitioners – Raja Ali Shah
and Farhath Ali Shah are the descendants of Maroof Ali Shah being the
sons; and that Maroof Ali obtained ORC from the Revenue Divisional
Officer, vide orders dt.17.07.1999; and that the petitioner herein had
wrongfully acquired title to the subject land being claimed by him from the
descendants of the notified Mutawalli under the guise of the ORCs
purported to have been issued in favour of the descendants of the notified
Mutawalli Sri Maroof Ali Shah, viz., Sri Raja Ali Shah and Sri Farhat Ali
Shah.
19. By the counter-affidavit, it is also contended that since, the very
title of the petitioner’s vendors being defective, the petitioner cannot claim
effective title over the subject land; that thus, the claim of the petitioner
that the revenue records, viz., ROR and pahani and also pass books and
title deeds, issued in favour of the petitioner are all null and void; that the
ORC issued in favour of the petitioner was challenged in appeal before the
Joint Collector and the Joint Collector by his order was pleased to set
aside the said ORC issued by the RDO, and directed the RDO, Narayanpet,
to conduct de novo enquiry with reference to the material available on
record after providing adequate opportunity to all the interested persons,
including the Wakf Board and pass appropriate orders on merits.
9
20. By the counter-affidavit, the 2nd respondent further contended that
mere entries in revenue records do not establish title; that the entries in
the revenue records are only meant for collection of revenue; that the
subject land never belonged to the vendors of the petitioner having
inherited from his deceased father late Maroof Ali Shah, who was the
notified Mutawalli and is the custodian of the wakf property, and as such,
does not have any right to alienate the Wakf property as laid down under
Section 51 of the Wakf Act.
21. The 2nd respondent by the counter-affidavit contended that the
descendants of the notified Mutawalli fraudulently obtained ORC from the
RDO on 17.07.1999 without issuing any notice to the Wakf Board and the
said order of the RDO was subsequently set aside by the Joint Collector;
that as per Section 4 of the Inams Act (Amended Act 19/94), no person is
entitled for getting his name recorded as pattedar on wakf properties and
even any such pattas were registered, the same should be treated as null
and void.
22. The 2nd respondent by the counter-affidavit also contended that
mere obtaining of permissions by the petitioner from different authorities
for establishment of petrol pump by obtaining dealership from BPCL, are
liable to be cancelled, as such permission were obtained without
knowledge of the 2nd respondent.
10
23. By the counter-affidavit, it is contended that though the petitioner
is stated to have filed a suit, vide O.S.No.20 of 2009, seeking perpetual
injunction against the persons who had styled themselves as Members of
local Masjid Committee, however, for the reasons best known, the
petitioner did not choose to make the 2nd respondent a party to the said
suit, as such, the orders purported to have been passed by the competent
Civil Court have no effect on the 2nd respondent.
24. By the counter-affidavit, it is further contended that since, gazette
notification was issued on 24.01.2002 notifying the subject land as wakf
land, if any challenge is to be laid, the same ought to have been done
within a period of one year from the date of publication of gazette
notification and in the absence of any challenge, the petitioner had
forfeited his right to challenge the gazette notification issued under
Section 6(1) of the Wakf Act and thus, the declaration of the subject
property as wakf property has become final and is subsisting, and as such,
the petitioner cannot challenge the same at this juncture.
25. By the counter-affidavit, it is also contended by the 2nd respondent
that the petitioner ought to have availed the remedy provided under
Section 83 of the Wakf Act by filing a suit instead of seeking adjudication
in a Writ Petition filed under Article 226 of the Constitution of India, being
a summary proceeding. The 2nd respondent by contending as above, seeks
for dismissal of the Writ Petition.
11
26. By the counter-affidavit filed on behalf of the 2nd respondent in
W.P.No.30132 of 2010, it is claimed that the lands in Sy.No.989, 390, 443,
444, 494, 597, 735 to 738, 740, 765 to 768, 797 to 799, 835 and 836 in
all admeasuring Acs.95.00 guntas are notified as wakf properties and got
published in the Andhra Pradesh Gazette No.4-A dt.24.01.2002; that the
legal representatives of the Mutawalli had obtained ORC in their favour
from the RDO, Narayanpet, dt.17.07.1999; that a portion of Takiya land
bearing Sy.No.797 to Sri Punnam Chand Lahoti, the petitioner in
W.P.No.20922 of 2009; that as per the Wakf Act, no one can sell or
mortgage or transfer or gift any wakf property without prior permission of
the Wakf Board, as the property vests with the respective institution and
its rights cannot be confirmed as ownership rights to any individuals; that
revenue and registration authorities of the District were requested not to
entertain any applications of Inamdars/Mutawalli or any persons
unconcerned for issuance of pattedar passbooks in respect of Wakf inam
lands; and that the Tahsildars were requested not to entertain any inams
abolition proposal in respect of wakf land; and that the Tahsildars were
requested to furnish information of wakf properties as per the revenue
records duly reconciling with the list of wakf properties; that since, the
valuable wakf lands in the State were being grabbed, the 1st respondent
had constituted a Task Force Committee at District Level to keep a special
watch over the eviction of encroachers and prevention of encroachments
12
of wakf lands; that the Survey Commissioner of Wakf conducted survey
under Section 4(3) of the Wakf Act and submitted a report; and that on
the Survey Commissioner’s Report, which was published by the 2nd
respondent in exercise of powers vested under Section 5 of the Wakf Act,
on 24.01.2002 notifying the subject land as wakf land.
27. By the counter-affidavit, the 2nd respondent further contended that
the petitioners, if they are aggrieved by the aforesaid gazette notification
issued under Section 6 of the Wakf Act, have to challenge the same within
one year from the date of publication and as the petitioners did not seek
to challenge the gazette notification within one year, the petitioners had
lost the chance of challenging the gazette.
28. By the counter-affidavit, it is further contended that as per the
notification issued under the gazette, the subject land under Dargah
Hazarath Mehar Pasha Saheb (Rh) with graveyard, which is patently a
wakf land; that it is settled principle of law that ORCs had to be issued in
favour of the respective institution and not for any individual in respect of
wakf property; that the ORC alleged to have been issued in favour of the
petitioners is erroneous; and that the petitioners cannot claim to be
owners of the subject land, much less being conferred with any rights to
alienate the subject property.
13
29. By the counter-affidavit, it is further contended that since, the
subject lands were given as service inams, for the purpose recognized by
Muslim law as pious, religious or charitable constitute the property as wakf
and wakf being a permanent dedication, grant of patta under the Inams
Act does not nullify it and further since, the said lands are notified as wakf
as per law, it always remains as wakf.
30. In support of the above contentions, the respondents relied upon
various decisions of the Apex Court in R itesh Tiw ari & another v/ s.
State of U.P . & others 1 ; Union of I ndia v/ s. P aras Lam inates 2 ;
R eserve Bank of I ndia v/ s. P eerless General Finance and
I nvestm ent Com pany Ltd 3 ; J.K . Synthetics Ltd. v/ s. Collector of
Central Excise 4 ; Sakiri Vasu v/ s. State of U.P . 5 ; Girdhari Lal and
Sons v/ s. Balbir Nath M athur and others 6 ; W orkm en of Am erican
Express I nternational Banking Corporation v/ s. M anagem ent of
1
AIR 2010 SC 3823
2
AIR 1991 SC 696
3
AIR 1996 SC 646
4
AIR 1996 SC 3527
5
AIR 2008 SC 907
6
AIR 1986 SC 1499
14
Am erican Express I nternational Banking Corporation 7 ; and P ratap
Singh v/ s. K rishna Gupta and others 8 .
31. The petitioners in W.P.No.30132 of 2010 have filed reply-affidavit
to the counter-affidavit filed by the 2nd respondent, denying the counter-
affidavits averments, and contending that though the gazette was
published in the year 2002, since, no notice was served on the petitioners,
they were not aware of the same; that the entries in the revenue records
were not changed or mutated in the name of wakf; that when the
petitioners received summons from the office of the Joint Collector in
October, 2009, on the opponents of the petitioners questioned the ORC
granted in their favour in the year 1999, before the Joint Collector,
Mahabubnagar, in the year 2009 i.e. 10 years after granting of ORC, the
petitioners came to know about the publication of their inam lands as wakf
property; and that the Joint Collector, without appreciating the law and
facts, allowed the appeal filed by the appellants therein and remanded the
matter for fresh enquiry;
32. Aggrieved thereby, the petitioners have filed the present Writ
Petition, and thus, there is no delay in questioning the gazette publication.
33. I have taken note of the respective submissions made.
7
AIR 1986 SC 458
8
AIR 1956 SC 140
15
34. At the outset, it is to be noted that the challenge in these Writ
Petitions to the impugned gazette notification dt.24.01.2002 is multi-
folded. The primary challenge is on the ground that the impugned
notification has been issued under Section 4(3) of the Wakf Act published
under Section 5(2) of the Wakf Act, 1954, which stood repealed with the
introduction of the Wakf Act, 1995. The other main ground of challenge of
the petitioners is that the procedure prescribed under Section 4 of the
Wakf Act, 1954, which is pari materia to Sections 4 and 5 of the Wakf Act,
1995 has not been followed while issuing the impugned notification
including the subject properties as wakf properties.
35. Insofar as the impugned notification issued on 24.01.2002 is
concerned, a perusal of the said notification would show that the same
has been issued claiming that the subject lands have been surveyed under
Section 4(3) of the Wakf Act, 1957 (wrongly noted instead of the Wakf
Act, 1954) and published under Section 5(2) of the Wakf Act, 1954. On
the day when the aforesaid notification is issued, the 1954 Act and its
amendment to Act 1984 stood repealed and as would be evident from
Section 112 of the 1995 Act. Further, Section 112 of the 1995 Act,
specifies that notwithstanding the repeal, it is only the acts which are
done or any action taken under the old Act would get saved.
36. Further, Section 112 of the 1995 Act, which provides for repeal and
saving of the Wakf Act, does not specify any provision of the 1954 Act,
16
much less Sections 4 and 5 of the 1954 Act getting saved even after
repeal. The effect of repeal of the 1954 Act is that it destroys of inchoate
rights and all causes of action which may have arisen under the provisions
of the repealed statute. It is trite law that once a statute is repealed, the
provisions under the repealed statute cannot be relied upon, as held by
the Apex Court in D.C.Bhatia v/ s. Union of I ndia 9 .
37. A Division Bench of this Court while dealing with amendment made
to the provisions of the VAT Act extending the period of limitation to make
assessment after repeal of the said act, by referring to catena of decisions
and also the principles of statutory interpretation, speaking through The
Chief Justice Ujjal Bhuyan, His Lordships Then, in the case of Sri Sri
Engineering W orks and others v/ s. The Deputy Com m issioner
(CT), Begum pet Division, Hyderabad 10 , had held as under:
“123. Repeal of an enactment would mean that such an enactment
is erased from the statute book; it would no longer be in existence.
This aspect was gone into by the Gujarat High Court in Reliance
I ndustries Lim ited MANU/GJ/1405/2020 : 2020 82 GSTR 32 (Guj.)(supra).
It has been held as follows:
68.2 Crates on Statue Law, 7th Edition, at pages 411-412 states
the principle as under:
9
1995 (1) SCC 104
10
MANU/TL/1197/2022
17“When an Act of Parliament is repealed, said Lord Tenterden in
Surtees v. Ellison 1829 9 (B&C) 750, 752; 7 L.J.K.B. 335, it must
be considered (except as to transactions past and closed) as if it
had never existed. That is the general rule’. Tindal C. J. states
the exception more widely. He says (in K ay v/ s. Goodw in
MANU/INOT/0001/1830 : 1830 6 ving 576 ; 8 LJ CP 212); The
effect of repealing a statute is to obliterate it as completely from
the records of the Parliament as if it had never been passed; and
it must be considered as a law that never existed except for the
purpose of those action which were commenced, prosecuted and
concluded whilst it was an existing law.”
68.5 Justice G.P.Singh in his Principles of Statutory
Interpretation, 12th Edition, 2010, while examining the
consequences of repeal has stated as follows (at page 695):
“Under the common law rule the consequences of repeal of a
statute are very drastic. Except as to transactions past and
closed, a statute after its repeal is as completely obliterated as if
it had never been enacted. The effect is to destroy all inchoate
rights and all causes of action that may have arisen under the
repealed statute. Therefore, leaving aside the cases where
proceedings were commenced, prosecuted and brought to a
finality before the repeal no proceeding under the repealed
statute can be commenced or continued after the repeal.”
130. Once it is held that the VAT Act stood repealed with effect from
01.07.2017 except for the limited categories of goods specified in
substituted Entry 54 of List II, question of amending the repealed act in
respect of those goods by virtue of the Second Amendment Act would not
arise.
18
38. Further, A Division Bench of this Court dealing with a similar
challenge in relation to a notification issued under the Wakf Act after its
repeal in the case of Telangana State W aqf Board v/ s. Solithro
P rivate Lim ited and others 11 , by referring to various decisions of the
Apex Court, has held as under:
“14. The making of survey under Section 4 of the Act is not a mere
administrative act but it is to be informed by a quasi- judicial inquiry.
The surveyor has the power to find out whether a particular property
is a wakf and Commissioner has to determine the aspects which have
been mentioned in Section 4 of the Act (see M aharashtra State
Board of W akfs v/ s. Shaikh Yusuf Bhai Chaw la (2022 SCC OnLine
SC 1653). The effect of repeal of a statute is to destroy all inchoate
rights and all causes of action which may have arisen under the
provisions of repealed statute. When repeal is followed by a fresh
legislation on the same subject, the Court undoubtedly has to look
into the provisions of the new Act, but only for the purpose of
determining whether they indicate a different intention. The line of
enquiry would be, not whether the new Act expressly keeps alive old
rights and liabilities, but whether it manifests an intention to destroy
them (see State of Punjab v/ s. M ohar Singh
(MANU/SC/0043/1954:1955 (1) SCR 893): AIR 1955 SC 84). The
aforesaid view was reiterated with approval in Gam m on India Ltd.
v/ s. The Special Chief Secretary ((2005)142 STC 370(AP))
and it was held that the issue with regard to the continuation of
pending proceedings under a repealed statute depends either under
the savings contained in the Repeal Act or under Section 6 of the
General Clauses Act. It was further held that question whether a right11
MANU/TL/1421/2023
19was acquired or a liability incurred under a statute before its repeal in
each case depends on the construction of a statute and the facts of a
particular case. It was also held that when there is a repeal of an
enactment and simultaneous re-enactment, the re-enactment has to
be considered as reaffirmation of the old law and the provisions of
the repealed Act which are thus re-enacted continue in force
uninterruptedly unless the re-enacted enactment manifests an
intention incompatible with or contrary to the provisions of the
repealed Act. The aforesaid view was again reiterated with approval
in State of Haryana v/ s. Hindustan Construction Com pany
Lim ited (MANU/SC/1185/2017).”
39. The conspectus of the aforesaid decisions of this Court, wherein the
legal position as enunciated by the Apex Court by its various decisions has
been considered in detail, it is clear that once a statute is repealed, the
provisions of the repealed statute cannot be invoked to undertake any act
under the said Act, unless and until the provisions which are sought to be
invoked are saved under the repealing Act.
40. In the facts of the present case, it is not shown to this Court that
either Sections 4(3) and 5(2) of the 1954 Act have been saved for
respondent Nos.1 and 2 to issue the impugned notification, 7 years after
repealing of the 1954 Act for this Court to held the impugned notification
as having been validly issued.
41. Further, the other challenge to the impugned notification is with
regard to the notices not having been issued to the petitioners in both the
Writ Petitions, who claim to be in possession and enjoyment of the subject
20
land. Though on behalf of the respondents, it has been contended that
the respondents-authorities having followed the due process of law before
issuing the impugned notification, no material is placed before this Court
as to when the respondents have conducted preliminary survey of the
wakf land as contemplated under Sections 4 and 5 of the 1954 Act.
42. The Hon’ble Supreme Court in the case of Salem M uslim Burial
P rotection Com m ittee v/ s. State of Tam ilnadu and others 12 , had
held that the Act provides for two services, settlement of disputes arising
thereto and submission of the report to the State Government and to the
Board, and thus, conducting of surveys before declaring a property as
wakf property is sine qua non.
43. In the facts of the present cases, the 2nd respondent is required to
conduct preliminary survey as contemplated under Section 4 of the Act
and also considering the objections, if any, before submitting report to the
State Government, based on which, the State Government is required to
issue a notification notifying the subject properties as wakf properties.
Having failed to state the aforesaid details, which are mandatory
procedural requirements to be complied with, cannot absolve itself of
complying with the said monetary requirement to claim that the
12
2023 LiveLaw (SC) 454
21
notification as having been issued by following the due procedure
prescribed under the Act.
44. A Co-ordinate Bench of this Court, while considering a similar claim
made under the Wakf Act, in the case of Cherukri P raveena, and
others v/ s. State of Telangana 13 had held that in the absence of the
proper procedure as prescribed under Sections 4 and 5 of the Wakf Act
before issuing gazette notification being followed, mere issuance of
gazette notification, under Sections 4 and 5 of the Act could not constitute
a valid wakf in respect of the land in question therein.
45. Even in the present Writ Petitions, wherein a challenge is made to
the impugned notification, the said details having not been stated by the
respondents in their counter-affidavit, which only goes to show that the
said notification has been issued, without following the procedure
prescribed under the 1954 Act, notwithstanding the fact that the said Act
stood repealed.
46. Though on behalf of the respondents, it is contended that Clause 6
of the General Clauses Act, is to be construed literally so as to save the
notification issued, having regard to the law laid down by the Apex Court,
the said contention is without any merit or substance.
13
(2024) 4 ALT466
22
47. Though on behalf of the respondents, it is also contended that
since the subject property is notified as wakf property and the principle of
‘once a wakf is always wakf’ stands attracted, firstly, it is to be noted that
prior to issuance of impugned notification, no material is placed to show
that the said properties have been notified as Wakf properties. Further, in
respect of existing wakf properties not registered earlier on enactment of
Wakf Act 1995, in terms of Section 36(8) of the 1995 Act are required to
be registered within three months from the commencement of the 1995
Act. The Wakf Act 1995 had come into force with effect from 01.01.1996
and thus, if the subject properties covered by the impugned notification
are wakf properties under the 1954 Act, though ought to have been
registered on or before 31.03.1996 for the lands covered by the impugned
notification to be considered as a Wakf created prior to enactment of the
1995 Act.
48. Since, the counter-affidavit filed on behalf of the 2nd respondent is
silent on all these aspects, mere issuance of a gazette notification
dt.24.01.2002 purported to be under the 1954 Act, cannot be held to be
valid exercise of power for the impugned notification to be sustained.
49. Similar view is also taken by another Coordinate Bench of this Court
in W.P.No.447 of 2007 dt.18.09.2024.
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50. In view of the aforesaid pronouncements, the reliance placed by
the learned counsel for the respondents on various decisions does not
advance the case of the respondents for this Court to sustain the
impugned notification.
51. Thus, considered from any angle, this Court is of the view that the
impugned notification dt.24.01.2002 cannot be said as validly issued for it
to be sustained.
52. Accordingly, the Writ Petitions are allowed and the impugned
notification dt.24.01.2002 is set aside.
53. In view of the orders passed by this Court in W.Ps., setting aside
the notification dt.24.01.2002, this Court is of the view that the order of
the Joint Collector allowing the appeal filed by the Members of the Masjid
Committee claiming the said land as wakf land based on the notification
has to fail.
54. Accordingly, the Civil Revision Petition is allowed and the order of
the Joint Collector is set aside.
55. Miscellaneous petitions, if any, pending in these matters, shall
stand closed. No order as to costs.
__________________
T. VINOD KUMAR, J
Date:28.07.2025
GJ