Smt. Amina Bee Died vs The State Of Andhra Pradesh on 28 July, 2025

0
2

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)
2

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-
3

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 right

11
MANU/TL/1421/2023
19

was acquired or a liability incurred under a statute before its repeal in
each case depends on the construction of a statute and the facts of a
particular case. It was also held that when there is a repeal of an
enactment and simultaneous re-enactment, the re-enactment has to
be considered as reaffirmation of the old law and the provisions of
the repealed Act which are thus re-enacted continue in force
uninterruptedly unless the re-enacted enactment manifests an
intention incompatible with or contrary to the provisions of the
repealed Act. The aforesaid view was again reiterated with approval
in State of Haryana 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.

23

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



Source link

LEAVE A REPLY

Please enter your comment!
Please enter your name here