Syed Rahamathullah Khadri v. Department, Secretariat Buildings, Velagapudi, Guntur District

Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate Writ, Order or direction more particularly the action of the Respondents in including my lands in S.No. 791 extent Ac. 13.98 cents and in the nature of Writ of Mandamus declaring S.No. 806, extent Ac. 48.30 cents in the list of Prohibited Properties, Frozen the e-seva Revenue Records, asking to cancel the Registrations pertaining to Survey Nos.791, 806 extents Ac.13.98 cents and Ac.48.30 cents respectively as illegal, improper, arbitrary, unjust and against the Principles of Natural Justice, consequently direct the Respondent its to release the above said lands from the list of Prohibited Properties, release the Revenue Records through e-seva pertaining to S.No.791 extent Ac.13-98 cents, Sy.No.806 extent Ac. 48.30 cents situated in Parla Village, Kallur Mandal, Kurnool 07.10.2019 of the 7*^ Respondent. 23/KNL/ADN/2017 withdraw District Lr.No. Prayer is amended as per Court’s Order dated 31.12.2024 in I.A.No.1 of 2024 in writ petition and affidavit. lA NO: 1 OF 2020 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Respondents to release my lands in S.No. 791 extent Ac. 13.98 cents and S.No. 806, extent Ac. 48.30 cents from the list of Prohibited Properties, to release the Revenue Records pertaining to above Sy.Nos. and extents from forzening e-seva and to withdraw the Lr.No. 23/KNL/ADN/2017, dated

07.10.2019 of 7*^ respondent, pending disposal of the above writ petition. Counsel for the Petitioners: SRI SRINIVASA RAO NARRA Counsel for the Respondents: GP FOR REVENUE Counsel for the Respondents: GP FOR REGISTRATION & STAMPS Counsel for the Respondents: SRI SHAIKKARIMULLAH, SC for WAKF BOARD RAYALSEEMA Counsel for the Respondents: SRI GYASUDDIN Counsel for the Respondents: SRI MD SHARFUDDIN The Court made the following order: 1 APHC010077342020 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3458] ■J> (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SECOND DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA WRIT PETITION NO: 4655/2020 Between: Syed Rahamathullah Khadri and Others ...PETITIONER(S) AND ...RESPONDENT(S) The State Of Ap and Others Counsel for the Petitioner(S):

1.SRINIVASA RAO NARRA Counsel for the Respondent(S):

1.GP FOR REVENUE (AP)

2.SHAIK KARIMULLAH (SC FOR WAKF BOARD RAYALASEEMA)

3.GP FOR REGISTRATION AND STAMPS (AP)

4.GYASUDDIN

5.MDSHARFUDDIN The Court made the following: ORDER: Heard Sri Srinivasa Rao Narra, learned counsel for the petitioners, Sri Sohail Shareef, learned counsel appearing for respondent No.8 - Waqf Board 2 and learned Assistant Government Pleader for Revenue appearing for the respondents.

#2. Seeking following relief, the Writ Petition is filed: ...to issue an appropriate Writ Order or direction more particularly in the nature of Writ of Mandamus declaring the action of the Respondents in including my lands In S. No. 791 extent Ac. 13.98 cents and S. No. 806 extent Ac. 48.30 cents in the list of Prohibited Properties, Frozen the e-seva Revenue Records, asking to cancel the Registrations pertaining to Survey Nos. 791, 806 extents Ac. 13.98 cents and Ac. 48.30 cents respectively as illegal, improper, arbitrary, unjust and against the Principles of Natural Justice, consequently direct the Respondents to release the above said lands from the list of Prohibited Properties, release the Revenue Records through e-seva pertaining to S. No. 791 extent Ac. 13-98 cents, Sy.No.806 extent Ac. 48.30 cents situated in Parla Village, Kallur Mandal, Kurnool District and to withdraw Lr.No.23/KNUADN/2017, dated 07.10.2019 of the 7‘^ Respondent and to pass...”

#3. Subsequently, the petitioners have sought amendment of the relief to the following effect; to amend the Main Prayer Portion as “Hence, it is prayed that this Hon’ble Court may be pleased to Issue an appropriate Writ, Order or direction more particularly one In the nature of Writ of Mandamus declaring the action of the Official Respondents particularly Official Respondent No. 7 issuing impugned Proceedings vide Lr.No.23/KNUADN/2017 dated 07.10.2019 to Official Respondent No. 6 to cancel the registered Sale Deed Nos. 3648/2018 and 3649/2018 dated

13.08.2018 and not to make any further registrations without issuing any prior notice to the rightful owners as illegal, arbitrary, unjust and in violation of Articles 14, 19, 21 and 300-A 3 of the Constitution of India and consequently set aside the same and to pass such other and further orders as this Hon’ble court may deem fit and proper in the circumstances of the case’’ instead of the earlier Main Prayer portion “Hence, it is prayed that this Hon’ble Court may be pleased to issue an appropriate Writ Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents in including my lands In S.No.791 extent Ac. 13.98 cents and S. No. 806 extent Ac. 48.30 cents in the list of Prohibited Properties, Frozen the e-seva Revenue Records, asking to cancel the Registrations pertaining to Survey Nos. 791, 806 extents Ac. 13.98 cents and Ac. 48.30 cents respectively as illegal, improper, arbitrary, unjust and against the Principles of Natural Justice, consequently direct the Respondent its to release the above said lands from the list of Prohibited Properties, release the Revenue Records through eseva pertaining to S. No. 791 extent Ac. 13-98 cents, Sy.No.806 extent Ac. 48.30 cents situated in Parla Village, Kallur Mandal, Kurnool District withdraw Lr.No.23/KNUADN/2017, dated 07.10.2019 of the 7‘^ Respondent and to pass....’’ The amendment sought by the petitioners was allowed.

#4. It is contended that the petitioners 1 to 5 have inherited the subject property from their ancestors. It is contended that the great grandfather of the 1®* petitioner, Syed Modin Miah, was the owner of the following lands: S. No. Survey Extent

#3. No. 789/B 791 806 Total Ac.3.77 cts Ac. 13.98 cts Ac.48.30 cts Ac.66.05 cts 4 He gifted his lands to his daughter Ameer Bibi. Later, Syed Ameer Bibi inturn gifted the same to her son Syed Ghouse Peera Khadri in the year 1936 vide Doc. No. 537/1936. Syed Ghouse Peera Khadri, had two wives i.e., 1) Kubura Bi and 2) Madina Bibi. After the death of 1^‘wife Kubura Bi, Syed Ghouse Peera Khadri married the 2"" wife i.e., Madina Bibi. Kubura Bi, the 1®^ wife had got one son namely Syed Yaseen Peera Khadri. Madina Bibi, the 2 wife got two sons namely 1) Murthuza Khadri and 2) Rahmathullah Khadri (petitioner No. 1). Murthuza Khadri got one son by name Syed Momin Khadri. Rahmathullah Khadri (petitioner No. 1) got two sons namely 1)Syed Asadullah Khadri and 2) Syed Ali Afzar Khadri. Rahmathullah Khadri (petitioner No.1) has got Ac.41.00 cents towards his share. He gifted his share to his two sons to an extent of Ac.10.00 cents and Ac.11.00 cents vide documents Nos.2224 and 2223 of 2009 dated 11.07.2009 respectively and retained an extent of Ac.10.00 cents to himself, in Survey No.806 and he also gifted the remaining to his wife, Hamida Bi vide Doc. No.2225/2009.

#5. Syed Ghouse Peera Khadri (father of the petitioner No. 1) sold an extent of Ac.3.77 cents in Survey No.789/B to third parties. Thereafter, he gifted the remaining extent in Survey Nos.791 & 806 to his 2"^^ wife Madina Bibi (mother of the petitioner No.1) vide Doc. No. 1110/1952. The family tree of the petitioners 1 to 5, submitted by them is as follows: 5 FAMILY TREE Syed Modin Miah (Great Grandfather of Petitioner No.1) I Daughter Ameer Bibi (grandmother of Petitioner No,1) ▼ Son Syed Gouse Peera KhadrI (father of petitioner No.1) ! Kubura Bi (1^* wife) Son Yaseen Peera Khadri Madina Bibi (2"'* Wife) (mother of Petitioner No.1) Rahmathulla Khadri (Petitioner No.1) 1 Sons Murthuza Khadri I Son Momin Khadri (Petitioner No.5) Asadullah Khadri All Afzal Khadri (Petitioner No.3) (Petitioner No.4) 6

#6. The properties referred in the Writ Petition were placed under prohibitory list on 05.06.2019. The petitioners Nos.2 & 3 together sold the land Survey No.806 in an extent of Ac.5.00 cents to one Boya Maddileti, the 6*^ petitioner herein for their family necessities. The Inspector-Auditor, Waqf Board, Kurnool, without conducting any enquiry and without giving any notice issued impugned proceedings. Basing on that, the Revenue Officials removed the names of the petitioners from the revenue records. It is contended that the petitioners Nos.1 to 5 in the Writ Petition were never notified the Gazette Muthavallies to any Mosque established by Waqf Board. There is no Mosque in Parla Village, established by Waqf Board. It is contended that at the relevant point of time, the lands of the petitioners have not been notified in the list of Prohibited Properties under Section 22-A(1) (c) of the Registration Act, 1908. It is contended that the subject properties were never Waqf lands. However, the 7‘^ respondent vide impugned proceedings dated 07-10-2019, directed the 6'^ respondent cancel registered documents bearing document Nos.3468/2018 and 3469/2018 dated 13-08-2018, executed by the 2"^^ and 3^^ petitioners in favour of the 6^^ petitioner.

#7. In support of his contention that the subject lands were not placed under prohibited category of registration at the relevant point of time, when the sale deed was executed in favour of the 6‘^ petitioner, the learned counsel for the petitioners relies on downloaded extracts from the Stamps and Registration r 7 Department. The petitioner(s) in support of their contention relies on the registered gift deed bearing Document No.537/1936 and 1110/1952.

#8. The 2"^ respondent - District Collector, Kurnool, filed counter affidavit contending that the subject property is Inam land belonging to Sunni Mosque of Parla Village, Kurnool Mandal. Under Section 4(1) of Waqf Act, 1954, the Government of A.P. had appointed Survey Commissioner to survey all Waqf lands situated District and thereby the Survey Commissioner, had prepared a list of all Waqfs and their properties. As per Survey report dated 07-03-1956, the subject lands are Inam lands given as Waqf to the Parla Mosque for its maintenance to perform religious ceremonies. It is further stated that at the time of Survey enquiry, one Sri Syed Ghouse Peer Quadri and Sri Syed Khaja Peer were the Muthawallies/Managers, who were looking subject properties. They have no right of alienation at all, so the claim that one Sri Syed Mohiuddin Mian was the owner was denied. It is further stated that on the basis of Survey Commissioner’s report, the subject lands were published in Gazette notification in A.P. Gazette No.43-A, at Serial No.3005 dated 24'^ October, 1963. He thus stated that based on evidence on record that the subject lands are Waqf lands, the same was informed to the Commissioner and Inspector General of Registration and Stamps Department vide a letter dated 16.11.2016, giving details of the subject lands and other lands of Kurnool District.

#9. The 6*'' respondent - Sub-Registrar filed counter affidavit stating that pursuant to the Full Bench decision of the erstwhile Composite High Court in the 8 case of Vinjamuri Rajagopala Chary and Others Vs. Principal Secretary, Revenue Department, the 7‘^ respondent vide proceedings dated 07-10-2019 and the District Collector vide his proceedings dated 06-03-2020 informed him that the properties admeasuring Ac.3.77 cents in Sy.No.789/B and Ac. 13.98 cents in R.S.No.791 and Ac.48.30 cents in R.S.No.806 in Parla Village, Kallur Mandal, Kurnool, are notified as land. He thus contends that in the light of decision of the Full Bench, the registering authorities are justified in refusing registration of the documents.

#10. The 7‘^ respondent - Inspector Auditor filed his counter affidavit stating that the subject lands are Inam lands and that the lands were given as to Mosque for its maintenance and for performing religious ceremonies. The Muthawallies looking after the subject properties have no right of alienation. It is stated that a survey in terms of the provisions of Section 4(1) of Waqf Act, 1954, was conducted and as per the said report of the surveyor, the lands are properties endowed for the maintenance of the Mosque based on record that the subject properties are properties the Commissioner and Inspector General of Registration and Stamps Department was informed of the same vide letter dated 16-11-2016.

#11. Sri Narra Srinivasa Rao, the learned counsel for the petitioners, argues proceedings 7*^ respondent addressed 6'^^ respondent to cancel the registered documents and not to entertain the documents for registration are not maintainable. He contends that the subject r 9 lands are private patta lands, and the petitioner Nos.1 to 5, having succeeded to the same through inheritance, have every right to deal with the same. He contends that as per the survey report of the survey that was conducted in the year 1954, the name of the Mosque was mentioned as “not known”. The gift deed was executed by their great-grandmother in favour of the grandfather of the petitioner(s) out of love and affection for his and his descendant's enjoyment. The donor under the said gift deed never endowed the same to the Mosque, she had only specified that the donee should render service to the Mosque.

#12. The learned counsel appearing for the respondent would contend that the subject properties private lands. Survey was conducted in the year 1956 and basing the survey report, in terms of the Section 4(1) of Act, 1954, the gazette publication was issued in respect of the properties of the Waqf. And that the said proceedings have become final, in the light of the same, Muthawallies have no right to make any transfers over the subject lands. Even if any transfers are effected, the same will not confer title and the same are hit by the provisions of the Waqf Act, 1954. He further contends that the Chief Executive Officer of the Board vide proceedings dated 28-11-2016, forwarded the list of prohibited properties from registration, the said list contains the subject properties. He relies on the Full Bench decision in the case of Vinjamuri Rajagopala Chary and Others Vs. Principal Secretary, Revenue Department\ wherein it is observed as under: ^ 2015 see Online Hyd 407 10 "Insofar as Wakf Act, 1995 (for short Wakf Act) is concerned, 5, 37 & 40 are relevant. Section 3(n) defines shia wak,f Sections 3, whereas Section 3 (oj defines sunni wak,f and Section 3(r) defines wakf We need not to go into further details of these definitions. Section 5 provides for publication of a list of auqaf. Amongst other things, the State Government is supposed to maintain a record of lists of sunni auqaf and shia auqaf in the State published under sub-section (2) from time to time. It is advantageous to reproduce Section 37, which is relevant for our purpose, which reads thus: Section 37 Register of Auqaf:- (1) The Board shall maintain a register of Auqaf which shall contain in respect of each copies of the deeds, when available and the following particulars, namely:- (a) the class of the Waqf; (b) the name of the mutawalli; (c) the rule of succession to the office of mutawalli under the Waqf deed or by custom or by usage; (d) particulars of all Waqf properties and all title deeds and documents relating thereto; (e) particulars of the scheme of administration and the scheme of expenditure at the time of registration; (f) such other particulars as may be provided by regulations. (2) The Board shall forward the details of the properties entered in the register of to the auqaf to the concerned land record office having Jurisdiction of the Waqf property. (3) On receipt of the details as mentioned in sub-section (2), the land record office shall, according to established procedure, either make necessary entries in the land record or communicate, within a period of six months from the date of registration of Waqf property under Section 36, its objections to the Board. ” 11

#13. The learned Standing Counsel for the Waqf Board contends that once a notification under Sec.4 of the Act, is issued in respect of any properties, the same would form part of Waqf properties. He relies on decision of the Hon’ble Apex Court in the case of Sayyed AH & Others. Vs. A.P.Wakf Board, Hyderabad and Others^, wherein it was held that Waqf is permanent dedication of property for purposes recognized under Muslim law as pious religious or charitable and the property having been found as Waqf would always retain its character as Waqf, and once a Waqf always a Waqf and the grant of patta in favour of Mokhasadar under the Inams Act does not in any manner nullify the earlier dedication made of the property constituting the same as Waqf. He thus contends that the Muthawallies have no right of alienation in respect of the properties belonging to the Waqf under Sec.50 of the Waqf Act, 1995, the duties of the Muthawallie are only to carry out the directions of the Board, and alienation of any property belonging to the Waqf without obtaining the permission of the Board is void. He relies on a decision of the erstwhile composite High Court of A.P. in the case of S. Abdul Razack Vs. Mandal Revenue Officer, Kollur and another,^ wherein it was held that the Muthawallies can only enjoy the usufruct arising out of the property, they cannot claim any right over the property.

#14. Considered the rival submissions. ^ (1998)2 see 642 ^(2000) see online AP 122 12

#15. A perusal of the impugned order dated 07-10-2019, reflects that the 7^^ respondent has requested the 6^'^ respondent to cancel the registered documents executed by the 2"^^^ and 3'^'^ petitioners in favour of the petitioner. It further reveals that the Office of Board had already informed the Sub Registrars and District Registrars in the past not to register the lands. The Sub Registrar has filed his counter affidavit, he, referring to the proceedings of the 7 respondent dated 07-10-2019, contends that in view of the Full Bench decision in the case of Vinjamuri Rajagopala Chary, the registering authorities are justified in not accepting the documents for registration. Nowhere, does he state that he was earlier (in 2016), communicated by the Chief Executive Officer of the Board, not to entertain any documents for registration in respect of the subject properties. It is apparent from the contentions of the Sub-Registrar that there was no earlier communication to them from the appropriate authority forwarding the lists of Prohibited Properties in respect of the subject village. At this juncture, it is relevant to extract the relevant portion of the judgment of the Full Bench in the case of Vinjamuri Rajagopala Chary referred supra: “Insofar as lists of properties covered by clause (c) are concerned, it must be forwarded by Commissioner, Endowments insofar as Charitable and Hindu Religious Institutions and Endowments are concerned and by Secretary of the Wakf Board in case of the properties owned by Wakf to the registering officers having Jurisdiction over such property and also District Registrar, Deputy Inspector General (R&S) concerned and so also to the Commissioner and Inspector General of Registration and Stamps in the proforma appended in Annexure III to the guidelines. Unless the lists are forwarded in the manner stated above and/or as provided in paragraph 3 of the guidelines, it cannot be r 13 and should not be acted upon by the registering officers having Jurisdiction over such property. Similarly, in case of properties covered by clause (d), list of lands declared as surplus under the provisions of the Acts mentioned In paragraph 4 of the guidelines by the revenue authorities (not below the rank of Revenue Divisional Officer) and the Special Officer and competent authority under the ULC Act concerned, they are expected to furnish lists of lands so declared as surplus lands under the Ceiling Acts to the registering officer having jurisdiction over such property and also to the District Registrar, Deputy Inspector General and Commissioner and Inspector General of Registration and Stamps in the proforma appended in Annexure IV. ”

#16. In the light of the above observation of the Full Bench judgment, the impugned proceedings of the 7*'^ respondent are not maintainable having regard to the fact that he is not an appropriate authority to request the registering authorities not to entertain the documents submitted for registration on the pretext that the subject lands are properties. As noted from the list of Prohibited Properties filed along with the Writ Petition, downloaded from the website of the Stamps and Registrations Department, the registering authorities, referring to the impugned proceedings of 7^^ respondent have kept the subject properties under Prohibited List of Properties, which is contrary to the decision of the Full Bench in the case of Vinjamuri Rajagopala Chary referred supra and the guidelines issued under Circular Memo dated 04-09-2007, the impugned proceedings of the 7*^ respondent requesting the 6*^ respondent to cancel the documents, that were registered in favour of the petitioner is beyond his jurisdiction and the same is not sustainable. 14

#17. The judgments relied upon by the learned Standing Counsel for the Waqf Board are not considered as relevant in the present circumstances as the issue for consideration is whether the District/Sub-Registrar of the Stamps and Registration Department has rightly followed the procedure in terms of the Registration Act and the Full Bench decision the case of Vinjamuri Rajagopala Chary, while enlisting the subject properties under the list Prohibited Properties.

#18. With the above observation, the Writ Petition is allowed setting aside the impugned proceedings dated 07-10-2019 of the 7*'" respondent. There shall be no order as to costs. As a sequel, interlocutory applications, pending if any, shall stand closed. That Rule Nisi has been made absolute as above witness the Hon’ble Sri Dhiraj Singh Thakur, The Chief Justice on this Wednesday, The Twenty Second day of January, Two Thousand and Twenty Five. Sd/-K.SRINIVASA RAJU ASSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER To,

#1. The Principal Secretary, Revenue Department, State of Andhra Pradesh, Secretariat Buildings, Velagapudi, Guntur District.

#2. The District Collector, Kurnool, Kurnool District.

#3. The Revenue Divisional Officer, Kurnool Division, Kurnool District.

#4. The Tahsildar, Kallur Mandal, Kurnool District.

#5. The District Registrar, Stamps and Registration Department, Gudur Mandal, Kurnool District.

#6. The Sub Registrar, Stamps and Registration Department, Gudur Mandal, Kurnool District.

#7. The Inspector-Auditor, A.P. State Wald Board, Colland torate Complex, Kurnool, Kurnool District. %

#8. The Chief Executive Officer, A.P. State Wakf Board, Vijayawada, Krishna District.

#9. One CC to Sri Srinivasa Rao Narra, Advocate [OPUC] One CC to Sri Shaik Karimullah, SC for Wakf Board Rayalaseema [OPUC] One CC to Gyasuddin, Advocate [OPUC] One CC to Sri Md. Sharfuddin, Advocate [OPUC] Two CCs to GP for Revenue, High Court of Andhra Pradesh. [OUT] Two CCs to GP for Stamps & Registration, High Court of Andhra Pradesh. [OUT] Two CD Copies

#15. RAM HIGH COURT DATED:22/01/2025 ORDER WP.No.4655 of 2020 g 0 3 MAR 2025 ^ . Current Section | ALLOWING THE WP WITHOUT COSTS