Writ Petition No. 18633 of 2021 · The High Court · 2025

Order

(l'er Ilon'ble Sri Justice T l'inod ,ltutnur) Since, both the writ petitions are integrally connectcd and the petitioners are one and. the salre, are being dispos,:d ol'by this Comrnon Order.

2. W.P No.18633 of 2021, is filed under Articl: 112(r of the Constitution of India, aggrieved by the ordcr ol tlrc Spccial Tlibunal dated 1 1.07 .2021, with the following praye r r iz.. For the reusons menlioned obove, it is most hunthly l,ruvul thul this Hon'blc Courl may be pleased lo grant u lVrit. ( )rdL'r or Direction, nutrc particularly in the nature oJ Writ of ( rrtt,)rdri callingfor records in Case N'o. F2/Spl Tribunal/1753i),t2 L be/itrt lhe Respontlanl No.2 i.e. Courl o.f Special Triltunul, !r:ul;ytttdu (Oltl Cose No.F2/231/2019, hefore the Old Revenue Courr, ,ldtlirional Collector) uncl to quash the Order of the Raspondatr lt'o.] i.e Court of Speciul 'l'ribunal, Nalgonda, ddted I 1.07.)0-'I in ('ase No. F2iSpl Tribunal/025 3/2021 (Old Cuse No.l:- 2- 1,')()19, v,hereby the Court of Special Tribunal in utter violu'iott ol llt Order passed by this lton'ble High Court in llt.P. ,\ t 581t) ol 2021, dated 16.01.2021, restored its earlicr Or kr Llutcd 15.02.2021, lhough the some v,os set oside by thi.s llot'hlc l[iglt Courl as bcing wilhoul jurisdiclion, illegal. arbttrarl, untl untenable in lau, aport from being voilalive oJ Articlcr l1 19. 2l and 300-A oJ Constilulion of India and consequentll: c.\ior( the Order of Reyenue Divisional Oflicer, Nalgontlu i.'t t usc No.8/4062/2018, datad}l.09.20l8 and pass such othct (trdt,r ot' Orders os this llon'ble Court deems fit and proltt,s 1,, ,,r" circumstances ol lhe case. 2

3. W.P No.21210 of 2021 is fited under Arricle 226 of the Constitution of India, challenging rhe Gazette Notification dated

22.02.1990, with the following prayer viz., For tha reasons menlioned abtn'e. it is nnst humhly prayed thal lhis Hon'ble Court may be pleased to grotlt u ll/rit. Order or Direction, more particularly in lhe tlat rc oJ'a ll/rit o/ Mandamus declaring the Andhra Pradesh Gazela bearing No. ,\-A, Parr 2, dated 22.02.1990 at Serial No.11505 ancl Page No.2t8 in respect of Survey No. 35 admeasuring Acre.; l-22 Guntas equiralenl k.t 7000 Sq. Yards situaled in Nalgonda Town. Mandal und District as null and void on accounl o./ being issued in yiolutbn of the provisions of lt'aqf Act, 1995. being v ithout .iurisdiction, illegal, arbitrary and untenable in law apart ./rom being voilcttive of Articles 14, 19, 2l and 300-A ofCotlstitution of India und also the principles of natural justice and consequenlly lo .\etdside the same along with all the octions taken in.f rtheratrcc thereof and pass such other Order or Ordcrs as thi.s [{on'ble ('ourt may deem fit and proper in lhe circumstances of the case und in the interest ofjustice.

4. The petitioners in Writ Petition No. 18633 of 2021 are

aggrieved by the order dated I I .07.2021 , passed by the 2"d respondent herein, which it is contended has bcen passed ln violation of the order of this Court dated 16.04.2021 in W.P. No.6840 of 2021

5. The petitioners in Writ Petition No.2l2l0 ol 2021 are aggrieved by the action of l" respondent in issuing the Gazette Notification dated 22.02.1990 in respect of the land in Sy No.35 3 admeasuring Ac.l-22 gts situated in Nalgonda to'vn, as waqf land under the Waqf Act 1954 (for short 'the Act'). I. Case of the Petitioners:

6. It is contended by the petitioners that, originallv the land in Sy No.35 admeasuring Ac.l-22 gts, situated t t Nalgonda originally belongs to Bismillah Khan Saab and after the death ol Bismitlah Khan Saab, his daughter Zainab Bee succeeded to the estate of Bismillah Khan Saab being his sole legal ht:ir, who vide registered sale deed dated 14.12. 1961 sold the land in Sy No. 35 admeasuring Ac.l -22 gts to the father of petitioner \o. I herein t.e late V. Bhasker Rama Rao, who in turn by virtuc of the said sale deed became the absolute owner and poss('ssor of the subject property

7. It is contended that, after purchase of the subj,.'ct plopefiy. the lather of the petitioner No.l after ribtaining all necessary permissions from the concerned authorities had c.rnstructed a Cinema Halt in the year 1964 and was running the samc under the name and style of "Bhaskar Talkies".

8. Petitioners contend that, the erstwhile A.P. Warlf Iloald had filed the suit vide O.S. No. l7 of l97l against Sri V. Bhaskar 4 Rama Rao, and the same was dismissed for default on 05.02.1912' that the A.p. Waqf Board did not file any peririons to restore the said suits to its original number and suppressing the fact of dismissal of suit filed by it, the respondent Waqf board filed another suit vide O.S. No.33 of l97l and the same was also dismissed and no appeal was also preferred there against, and the order passed therein has attained finality.

9. It is contended that, Late Sri Bhaskara I(arna Rao, being in possession of the land admeasuring Ac.t_22 gts and having constructed a cinema hall therein by obtaining permission from the District Collector, had settled the open land adn.reasuring 2000 Sq. yds in favour of his two sons narnely and Venepalli Prasad Rao petitioner No. t herein and Venepalli Ramchander Rao the husband of petitioner No.2 vide registered Settlement Deed dated 16.06.1976 on rhe file ol the Joint Sub-Registrar, Nalgonda. Subsequently, Venepalli Ramchander Rao and petitioner No. I herein had constructed a Cinema Hall in the said extent under the name and style of ,,Sri Lakshmi Talkies,, by obtaining all necessary permissions from the concemed authorities which are renewed from time to tirne.

10. It is further contention of the petitioner No. l, that his father during his life time had constructed several mulgies in the area of 3000 Sq. yds out of the subject property towards northem and western side of the land adjoining the main roads i.e., .Deverakonda Road and Miryalaguda Road l,y obtaining necessary permission from the concemed authorities, rvhich were also subjected to property tax by the municipal authorities. 1I. Petitioners contend that, since both Cinena Hails i.e.. Bhaskar Talkies and Lakshmi Talkies which were running up to the year 20 l0 had become old, the petitioners in corLsonance with the Govemment Policy under G.O.Ms.No.486 MA & UD Deparhent wanted to constmct a Multiplex therein, had made an application to respondent No.3 and simultaneously ,lismantled the existing two theatres

12. Petitioners contend that, on they making. the above application, the 3'd respondent had issued letters lo various concerned departments/authorities and all tht: concerned departments/authorities issued no objection, ;br granting permission, and as such the Revenue Divisional Officer was pleased to issue proceedings dated 10.02.201 I by recommending 6 permission for construction of a Multiplex in the subject property.

13. lt is contended that, while the things stood thus, a prolomla Show Cause Notice dated Ni1.10.2004 was issued bv the A.P State Waqf Board in the name of the father and brother of the petitioner No.1 (late V. Bhasker Rama Rao and late V Ramchander Rao the husband of the 2nd petitioner),, which was served on 29.03.2005, claiming that the noticee have encroached into the land to an extent of Ac.l-22 gts forrning part of Gazette dated 22.02.1990 belonging to Waqf institution and called upon the noticee to submit explanation within I 5 days as to why an order to remove the encroachment should not be made under Section 5 (3) of the Act; and that they filed a detailed reply to the same on 31.05.2005.

14. Petitioners contend that, the respondent No.7 did not aflord any opportunity of personal hearing and though alleged to have passed eviction order on 21.10.2005 under Section 54(3) the said order was never served on the father and brother of the petitioner No. l. Furlher, under such proceedings initiated under Section 54 of the Waqf Act, 1995 (for short'the Act') the respondent No.7 7 could not have declared its own title and ordere,d summary eviction of thc petitioners, who had bonafidely pr-Lrchased the subject propert), in the year 196l that is prior to the alleged summary proceedings and had converted the nature o1'property frorn agricultural to non-agricultural purposes mc,r.e than 60 years ago and is in settled possession.

15. Petitioners f urther contend that, the Chief Execr- tir e Officer of the respondent No.7 after more than 5 years of passing the alleged order under Section 54 (3) ofthe Act and only afler the petitioners have demolished the existing theatres, har; forwarded the orders vidc ploceedings dated 22.08.2011 to tlie Rcvenue Divisional Olficcr and Sub Divisional Magistrate.

16. It is also contended that, based on the purported communication the Revenue Divisional Officer and Sub Divisional Magistrate issued proceedings dated 25.08.201 I directing the fzrtlier ol petitioner No. I herein and 5 5 others to vacate from land in Sy Nos.34,35 and 119 of Nal3onda. The father of petitioner No. I immediately.gave a represen.ation dated

29.08.201I to the Revenue Divisional Officer and Sub-divisional Magistrate sceking ro recall the eviction Order dated:15.0g.2011, 8 which was not considered and also did not afford an opportunity of personal hearing. Further it is also contended that, the Joint Collector, Nalgonda, in case No. Bll2ll25l97 in relation to the sarre Gazette gave a finding that the lands therein does not belong to the Waqf Board and declared as private patta lands.

17. Being aggrieved by the inaction of Revenue Divisional Officer and Sub Divisional Magistrate, the father and brother of the petitioner No. I helein (late V. Bhasker Rama Rao and late V Ramchander Rao) filed W.P.No.25260 of 2011, challenging the proceedings dated 25.08.201 1, whereby, the Hon'ble High Courl vide order dated 17.09.2017, was pleased to set-aside the impugned proceedings therein and directed the authorities to call for explanation and give an opportunity to submit their arguments along with relevant documents.

18. Petitioners also contend that in pursuance of the order of the Hon'ble High Court, the Revenue Divisional Officer by order dated 01.09.2018 passed a reasoned order holding that the subject property is not a registered/notified Waqf Properly; and that printa .facie there is a clear flow of title infavour of the petitioners. Aggrieved by the said order, the Waqf Board filed 9 revision before the Additional Collector and in said Jte vision; the petitioners herein filed a Counter disputing thc very maintainability of the said Revision

19. Petitioners contend that. as the Additionat Collcctor was not deciding the appeal and also not passing final ordcls, the petitioners herein had filed W.P No. 26158 of 201') seeking an expeditious disposal of the Appeal, and this Court ras disposed the said writ petition vide order dated 12.03.2020, Jirecting the Additional Collector to dispose of' the case within tbr.rr months from the date of the order. However, after nine months, the petitioners r.vere informed by an endorsement date(l 04.12.2020 that the case before Additional Collector was trans l'erred to the Special Tribunal, Nalgonda.

20. Petitioners contend that, as most of the Special Tribunals were passing orders in utter violation of principle s ,tf natural justice a Public Interest Litigation videW.P. (PIL) N:.20 of 2021 was filed wherein this Court vide its order dated 02.03.2021 has issued directions to the Tribunals to afford to th-, parties an opportunity of personal hearing. 10

21. Notwithstanding the pendency of W.p (pIL) No. 20 of 2021 , the Tribunal passed an order. in the petitioners matter by 'ante dating' the said order as allegedly having passed on

15.02.2021, without affording any opportunity of per.sonal hearing and without considering any of the contentions raised in the pleadings and written argurnents of the petitioners and held that RDO passed orders by expressing his opinion on the title of the property by exceeding thejurisdiction. Aggrieved by the said order the father of petitioner No. I and petitioner Nos.2 and 3 herein preferred Writ Petition vide W.p.6g40 of 2021, wherein this Court by order dated 16.04.2021 was pleased to set aside the order passed by the respondent No.2 as under: lxtn a dale o hearin dated 15.02.2021. is set aside. The "4. Hot,ing regard to lhe same, the order passed by the Special 'h'ibunol, ecial Tribunal is di|ected to issue notice lo the Parties befo re the Special Tribunal h ar on the dale fixecl bv the Special Tribunal and after hearins the oarties, the Sneciol Tribunol shall DASS ADDrO priale orders by asstgntn P due reason.s in sunDg4:gLlhe decision. The entire exercise shall be completed within a period of sir weeks lrom the dale of receipt 2 ofcopy of this order. It is open lo lhe parties to raise all pleas as available in law before the Special Tribunal. " rtie.s.shall 7he

22. It is contended by the petitioners that, dur.ing the pendency of the writ petition vide W.P No. 6840 of 2021, and having regard to Qe order passed by this Couft in W.p (pIL) No. 20 of \ 11 2021, the petitioners filed review petition on 06.04.202i before the Tribunal seekir.rg for review of the order dated 1!;.02..2021

23. In the rneantime, this Court by its order dated 16.04.2021 in W.P No. 6840 of 2021 was pleased to set aside tht: order dated

15.02.2021. It is further contended that despite th,: specific direction by this Court to decide the case afresh, the respondent No.2 in contravention of the order passed in W.P. No. 6840 of 2021, has taken up the review petition filed on 06.04.2021 and passed order dated I 1.01 .2021 confirming its earlier order dated

15.02.2021 which no [onger existed on account of being set aside by the Court in W.P.No.6840 of 2O2l vide orcler dated

16.04.202t.

24. The petitioners herein challenged the impugned order dated

11.07 .2021 on the fbllowing grounds a. The impugned ordcr is not sustainable as the case vas heard as a revieu, and passcd an ordcr confirming its earlier ordcr.uhich no longer existed on the account of bcing set asidc by this Court uide its Orders dated 16.04,2021 in W.p. No. 6840 2021. b. The impugned order cannot be sustained as the respondent No.2 completely flouted the liberty given to the petitione-s ro raise a[[ pleas belore the Special l'ribunal. t2 The impugncd Order resultcd lrorn a Rcvision petition, ulder Section 9 of the 'lelangana Rights in Land and parteder pass Book Act. 1971 is not maintainable lor the following reasons: The proceedings werc issued under Seclion 54(3) of the Waqf Act, 1995, thus, it is not a procecding under the ROR Act. t97t, as such an appeal against an order passed under. Waqf Act cannot be challenged under the ROR Act, lg7l. The ROR Act, 1971 applies to agricultural land and does not include non-agricultural land. Admittedly the subject property was bcing used for non-agricultural purposes for the past 60 ycars. Therefore, the provisions ofROR Act, l97l do not apply to the subject property. t Under Section 9 of ROR Act, 1971 only the orders Passed by thc Mandal Revenue Of'ficer or the Revenue Divisional Officer under Scction 3, 5 5,A or 58 in respcct ofany record of rights prepared oi maintained by Mandal Revenue Officer or the Revenue Divisional Officer can be challenged. However, since the ordcr passed under the Waqf Act does not lall under any one of the categories the revisional powers under Section 9 ofthe ROR Act. l97l cannot be exercised. d. Thc A.P. State Waqf Board had initiated the proceedings under Scction 54 of the Waqf Act 1995 by suppressing the fact that it had filcd suits belore Civil Court vide O.S. No. 17 of l97l and O.S. No. 33 OIr l97l.both of which were dismissed. Once a Civil Suit for recovery of possession is dismissed, a summary remedy cannot be invoked to circumvent the dismissal Order passed by the Civil Court and disturb the long-standing possession of 60 years of the petitioners. 13 f. The alleged Gazette under Scction 54 proceedings uere initiated is void ab inilio as no notice was given to the petitiorers during the course of'the Section 54 procecdings which were conc rLcled. g. The prescnt Revision has been filed against the Order passcd by the Revenue [)ivisional Officcr and Sub-Divisional Mirgi:trate in proceedings dated 01.09.2018. When the matter was rcrrantlctl back thc very provision, under u,hich the Order was passed i.e Scction 54 stood amendcd. As per the amendment, the CEO no longer had the power to pass an order for removing alleged encroachrncnts. h. The Revision Petitioner after failing befbre the Civil Courts on two occasions and after having kept quite for more than 5() ) cals cannot out of thin air invoke a summary remedy to take por;scssion of the subjecl property belonging to thc petitioners on wlrich count the Revision lails and is liable to be dismissed.

25. In W.P No.2l2l0 of 2021 the petitioners contcnd that, as per Section 4 of the Act, the survey commissioner hirs 1o conduct an enquiry by giving notice to all the interested persons. However, in the present case, no such notices were issred to the petitioners or to the 1't petitioner's father who had purc:hased the subject land in the year 1961 under registered docurent and is in possession and enjoyment thereof having constructrd a cinema hall therein. As per Section 5(2) of the Act, the Wrql'Board is obligated to examine and veri$, the correctness of the repoft but no such examination/verification has been donc to rnake publication of Waqf in the official Gazette. Thcrcfore. the 14 impugned Gazette Notification is liabte to be set aside on the ground of procedural irregularities and in violation of principles of natural justice.

26. Petitioners contend that, the irnpugned Gazette which is based on the alleged Survey Repor-t is vitiated by the fact that as on the date of conducting the. alleged Survey by the surveyor on 0l .07.1971 under Section 4(3), the entire revenue record was in favour of the petitioners. Thus, the alleged Survey report recording thal there are no occupants and that tl-re land is vacant, is without any basis contrary to record and is a paper survey which was done without any actual survey being done on the land. Further, the alleged Survey is also contrary to the pleadings in the Civil Suit filed by the Waql Board wherein the Waqf Board admitted the possession of the petitioners/their ancestors.

27. It is also contended that, under Sub-section (8) of Section 25 in case ol Waqfs created before the commencement of the Act, every application for r.egistration shalt be made, within three months lrom such commencement and in the case of Waqfs created after such commencement the application shall be made within three rnonths lrom the date of creation of ihi: Waqf. 15 However, in the present case no reason is assigned ;ts ro why the alleged Waqf propeny was not registered since 19'50 till 1990 Therefore, the impugned Gazette is clearly an aftertliorrght and is liable to be set aside.

28. It is lurther contended that, there is atrsolutely documentaly proof on record to show that thcle was a dedication/Waqf. Further, the impugned Gazette i:, contrary to the registered sale deed executed 29 years back thercbl attracting the presumption of genuinity

29. The petitioners in support of their case have pl rcr:d reliance on the following decisions: I Union o1' India vs K.M Shankarappar U.P. Awas Evam Vikas l'}arishad v. Gyan Devi2 Govt. of A.P. v. Thummala Krishna Raol Adapapa Venkata Reddy v. Rcvenue Divisional Olllccr rLntl Sub- Divisional Magistrate. Gudura Managing Committee Mas jid-e-lbrahimia v. Hyderab rd .\llr,,1ni S.l' Chengalvaraya Naidu (Dead) bv LRs vs Jaganr atlL 1l)cad) b1' Llts and Others6 Ram Preeti Yadav vs U.P Board of I{igh School anrl Intermediate education and OrsT I4chhrnan Das vs Jagar Ram and Orss I ' 1zoor1 r lcc ssz 'reo; 1z; scc i:e 'rrru 121 scc r:l \zoor; : nr.o ros 'lzoooy z er L: tzo lrss+1 r scc r '1zoo:1 a scc:rr u 16 x XVII Statc of Andhra Pradesh vs n.p State Waqf Board and Orse Gosula Ramulu, and others v. A.t). Waqf Board, r.ep. by its Secretary, Nampally, Flyderabad and othersr0 Board olMuslim Waqfs v. Radha Kishanrr Prcm Singh v. Birbalr2 Ramti Devi v. [Jnion of Indiarr Ahmedsaheb v. Sayed Ismailra Telangana State Waqi Board vs. L. Srinivasa Reddyls Bhimabai Mahadeo Kambekar (Dcad) through LR vs Arthur In-rport and Export Company and Ors16 Union of India v. H.K. DhruvrT Suzuki Parasran.rpuria Suitings (p) Ltd. v. Offioial Liquidatorr8 D Prabhakar Rao & Ors vs AP State Waql Boartl Wp No.21515 of 2013 dated 22.07.2013 Order in WP No. 27668 of 20t I darcd 10.08.2022 I[. Case of the Resnondents:

30. It is contended that in W.P No. 18633 of 2021 thar, the lands bearing Sy. Nos.34, 35 & llg total adrneasuring Ac 6-24gts situated at Nalgonda village are Waqf properties classified as Mashroot-ul-Kl.ridmat lnam (Servicc Inam lands) attached to the Waqf institution namely Ashoorkhana Bade Naal Sahab admeasuring 221 Sq. Yds, which lands has been notified and SCC OnLine SC 159 "1zooz1 ro scc a.ts e2022 rolzot z; 3 nLt 3al "(1979) 2 scc 468 ''12006; s scc 3s: "1tels; t scc I98 '"120 rz; s scc s ro "2022 1a1 ttto t tt '1zors) :bc6{9r "12oos; to scc z t tt '\zo ra; ro scc u oz 1,7 published in the A.P. Gazette No.S-A Supplemert to Part-ll, dated.22.02.1990 at Page No.248 with Sl.No. 14505

31. Respondents contend that, before publication of rhe alleged notification. the said Waqf lands were surveyed by lbllorving the procedure by issuing notices to all the concemed, lry rnaking public pronouncements, in presence of the thr:n Cirdawar (Revenue Inspector), Patwari of the village and othe.s.

32. l-trrther the respondents contend that they s.rbrnirtcd the required inlbrmation in Survey Forrn with SI.No.22 l, ,"r,hich was in turn published in A.P. Gazette dated 22.02.199(), wherein it bears the signatures of 1) Sri T. Pratap Reddy Sab (the then Girdawar) 2) Mohd. Ibrahim Sahab Patwar.i l) Khaja Azeezuddin Sab (the then Girdawar) 4) Mohd. A:rdr.rl Itazzak Sahab l'ajir (Businessman) 5) Choudry Mohd. l.,lubarak Ali Khan Sahab Head Master Rahmat-e-Alam School 6) Mohd Abdu[ (iafoor Saheb Tajir (Businessrnan) Nalgonda

33. Respondents contend that, the Muthawalli,s i e. 1) Abdul Razzak Khan 2) Zainab Bee are not supposed to ali:nirte / sell / mortgage etc., of the said Waqf lands,without prior perrnission of the Waclf Board, and any transaction made by the lluthawalli / 18 N4uthawallies without prior permission of the waqf board is null and void, void ab-inilio as per Section 51 of the Act. It is also contended that, on receipt of information of encroachments by the unauthorized persons, the Waqf Board served show-cause notices to 56 encroachers individuatly under section 54 (1) of the Act calling for explanation as to why they should not be evicted from the Waqf land.

34. Respondents furlher contend that, in response to the said notices the encroachers including the petitioners in W.P. No. 25260 of2011 have filed their explanation before the then Chief Executive Officer, APSWB, which were exarnined and found as not convincing, accordingly order dated 21.10.2005 was passed under section 54(3) of the Act for eviction of the encroachers.

35. Further, the respondents contend that, in spite of issuing notices dated NIL.10.2024 and orders dated 21.10.2005, the encroachers had faited to hand over the vacant possession and they also did not choose to file appeal before the Waqf Tribunal, as such the said order dated 21.10.2005 has attained finality Subsequently, the matter was refer:red to the R.D.O. Nalgonda under section 55 of the Act vide order dated 23.12.2010 for 19 execution of the order dated 21.10.2005, with a reque:;t to evict the unauthorized persons from the waqf lands and :o deliver possession of the Waqf property. It is contended that on the, RDO issuing proceedings dated 25.08.201 I to all thc 56 encroachers rvith a direction to vacate the encloacher', the Tahsildar Nalgonda has evicted the encroachers and submitted report to the Waqf Board

36. Respondents further contend that, on receipt , rl- thc order dated 07.09.20 l7 in W.P. No. 25260 of 2011, this respondenr filed detaited written arguments dated 21.08.2018 lbr granr ol Occupancy Rights Certificate (ORC) under sectir,n 4 ol- the Telangana Area r\bolition of Inams Act 1955 in f-rrvour of the Waqf institution

37. It is contended by the respondents that, the resp,rndent No.5 passed a biascd order dated 01.09.2018, avoiding to :xirmine the written argLnncnts filed along with application in lrrtrm-l fbr grant of ORC in respect of the said Waqf propcrty; rhat the said order was not thc order purported to have been ptssed under Section 55 of the Act, as it is mainty discussed on the aspect of land purchased by the petitioner lrom Smt. Zainab L)ce vide sale 20 deed dated 14.12.196l and alleged permission for construction olCinema theatre on the said Waqf land, as such the respondents filed a Revision was filed before the Joint Collector Nalgonda District, by questioning the effoneous order passed by respondent No.5 vlde order dated 01.09.201g.

38. It is further contended that, the order of the respondent No.5 dated 01.09.2018 was not an.order under Section 55 of the Act, and is beyond the jurisdiction, as the respondent No.5 had wrongly dealt the issue of Title of the Waqf property wirh relerence to the docurnents of purchase, which are relating to ROR, whereas it was not the subject matter before the respondent No.5 in the said proceedings. Thus, the petitioners are not entitled for any relief as they have alternate rcmedy by approaching the Waqf Tribunal to deal all the Waqf matter under Section 83 of the Act.

39. On behalf of the respondents, it is contended that, the Rcgistered Sale Deed dated 14.12.196l executed by one ofthe Muthawallies namely Smt. Zainab Bee is liable to be cancelled under Section 51 of the Act and Secrion 22_A(c) (i) of the Registration Act 1908, read with Rule 243 of the Registration \./ 21, Rules, as the Muthawalli being a care taher has no 'ight and title to alienate the Waqf property.

40. It is contended that, the petitioners herein 'rave filed W.P.No.26 158 ol 2019 seeking direction to the Joint (lollector to pass final order, wherein the Court disposed off the said writ petition with a direction to the 3'd respondent i.e. Joint Collector to dispose of rcvision within four months, and later due to charge of jurisdiction the case r,r,as transferred from Joint Collector to the Speciat 'I'ribunal Nalgonda District. wherein the Speciat Tribunal after conducting detailed enquiry obserr,ed that "The RDO Nalgonda instead of submission of claims received from the parties to the CEO Waqf Board, the kDO past'ea' orders by expressing his oltinion on the title of property by ac,ing in ercess ofjurisdiction ", and allowcd the Revision.

41. It is contended that, the Special Tribunal has set aside the order of the respondent No.5 dated 25.08.2011 with ,r direction to record the property in the name of Waqf Board, since the inception of lecord. However, the respondent lJo.5 did not comply with the orders of the Special Tribunal date<l 15.02.2021 . Further, the petitioners herein filed writ petition vide 22 WP.No.6840 of 2021 seeking to set aside the orders dated

15.02.2021 of the Special Tribunal, wherein this Court while disposing off the said writ petition, by order dated 16.04.2021 , directed the Tribunal to issue notice to the parlies and to pass appropriate orders by assigning reasons.

42. It is also contended that, the petitioners fited a Review petition belore the Special Tribunal Nalgonda with a prayer. to review the orders dated 15.02.2021, accordir.rgly, it was taken upon I 1.07.2021 and passed order observing that the subject Iands are notified Waqf property published in A.p. Gazette No. 8-A parl-Il dated, 22.02.1990 as such it continues to be Waqf properties. frurther, the Special Tribunal further observed that the respondent No.5 passed orders by expressing his opinion on thc title of the property by exceeding his jurisdiction, but no additional evidence produced by the Review petitioners to review t[-re earlier orders. Thus, the Special Tribunal fbund no reasons to review the earlier orders dated 15.02.2021 and dismissed the Review petitron.

43. Respondents contend that, aggrieved with the said orders dated 11.01 .2021 the petitioners filed the present Writ Petition 23 with a malafide intention to grab the valuable primt: Waqf lands. Further, the allegation that the order dated 11.07.2021 did not consider the order in WP.No.6840 of 2021 dated 16.04.2021 is a matter of record but it does not affect the character and nature of the land in question being the Waq[ property.

44. Respondents also contend that, the provisions under Section 5(3) of the Act cast a duty on the revenue authorit es to include the list of Auqaaf i.e., the Waqf properties notified in the Gazette, while updating and mutating the land recc,rds. Thus, as per the order dated 15.02.2021 directing the respondent No.5, to record the property in the name of Waqf Board since the inception of records is absolutely correct and within the frame work of the Act and Rules

45. In so far as W.P No.2 i 2 t 0 of 2021 , on behalf of respondents it is contcnded that, the subject waqf insr.itution i.e Ashoorkhana Badenaal Saheb and Dargah Asifulla]r Shah Qadri along with its attached property agricultura l lands in SyNos. 119,34 and 35 admeasuring Ac 6-20 gtr;:;ituated at Nalgonda are classified as Mashroot-ul-Khidmatirarn (service Inam lands), registered and notified waqf property published 24 under the AP Gazette dated 22.02.1990 at Serial Number 14505 and Page No. 248 under the Mutawalli-ship of Abdul Razak Khan s/o Majeed Khan (Mujawar), 2) Zaiab Bee w/o Mohamrned Qumaruddin who are the caretakers (supervisors) ol the institution and waqf properties only.

46. Further, the respondents contend that, the writ petitioners could approach the Waql Tribunal by questioning rhe said Gazeue instcad of approaching this Court for adjudication of the dispute and thc ownership claimed by the petitioners in waqf propefty basing on the alleged sale document which is not readable ploperly as it neither bears proper registration number, nor extent / area of the land nor boundaries and as such cannot be considered as genuine in the eyes of law. Therefore, the order dated 27.08.2011 passed by the respondent No. 5 delivering possession ol the subject waqf property has become final and binding on thc petitioners.

47. Itis contended that the subject property is the waqfproperty and lor that reason the petitiohers are not allowed to construct or carry on any business by obtaining licenses/permissions / no objections lrom any authority except prior permission of the 25 Waqf Board. It is further contended the petitioners have influenced and manipulated the entire records including certificates from the Revenue, Municipality and other deparlments in obtaining perm iss ion s/licenses etc.

48. Respondents contend that thc notice under section 54(l) of the Act dated 29. 10.2004 was served on the lather anl hrother of the Writ Petitioner No. I i.e. latc V. Bhaskel Rama Flao and late V. Ramchander Rao, but they submitted vague replr vidc letter dated 3l.05.2005 which is neither convincing nor acc()ptable.

49. Further, the ownership claimed by the petiticner on the basis of an unreadable Urdu sale docur.nent dated l4 . I 11. I 96 I is submitted prior to the gazette notilication wherein thc subject land was continuously recorded as Selvice Inam Lanrl olsubject institution in revenue records, which itself shows the t the entire Sy No. 35 is Waqf since immernorial

50. The respondents ln support of their case h..rvc placed reliance on the lollowing decisions: D Venkata Krishna Rao and Ors vs Governrnent of Andhra lrradesh and ors l') ''2012 SCC OnLifle AP 704 ) 26 ii. Pilli Anlancyulu Yadav vs Govemment of Andhra pradesh and Itl ors2o Mir Qamar Hasan Razvi vs Ap State Waqf Board, Hyderabad2r Board of Waqi, West Bengal and Arr vs Anis Fatma Begum and ^))Anr Sayycd Ali and Ors vs AP WaqlBoard, Hyderabad and Ors23

51. Heard Sri Zeeshan Adnan Mahmood, leamed Counsel for the petitioners, learned Govemment pleader for Revenue appearing for rcspondent Nos. I ,3 to 6, leamed Govemment Pleader for Minority Welfare'appearing for respondent No.2 and Sri Ashutosh Joshi, learned Standing counsel for the respondent No.7 and perused the record. III. Contentions of the Petitioner:

52. Learned Counsel for the petitioner while reiterating the writ avernents had submitted that, the Special Tribunal has no power to review its own ordcr dated. 15.02.2021 more so when the said order has been set aside by this Court by virtue ofthe order dated

16.04.2021 in W.P No. 6840 of 202 t.

53. It is lurther subrnitted that, it is evident from the order dated

16.04.2021 that this Court had issued six directions were not complied by the Special Tribunal, and by virtue of the executive 202012 scc onl-ine AP 705 '?r201 I scc onLine AP 123 "1zoto,1 ra sccsgr "(1998) 2 scc 6+z\ 27 action, the respondent authorities cannot overtum a judicial verdict

54. It is fur1her submitted that, the survey of waql- r,r'hich was allegedly concluded in the year 197[ under section 4t3) of the Act cannot be published under section 5(2) oi the .\ct after 20 years which is violation of principles of natural justice and provisions of the Waqf Act 1954.

55. It is also submitted by the learned Counsel on trehalf of the petitioners that, the Special Tribuna.l could not have exercised jurisdiction under the Waqf Act since it is veste<l only with jurisdiction under Section 9 of ROR Act, l97l whir:h gives the Special Tribunal jurisdiction in respect of the or,lels Passed under ROR l97l by the Mandal Revenue Offlcer or the Revenue Divisional Officer under Section 3, 5 5.{ or 58 in rer;pe.ct of any record of rights prepared or maintained by Mandal Revenue Officer or the Revenue Divisional Oftlcer. IV. Contentions of the Respondents:

56. Learned Counsel for the respondents submirs that, the appeal filed before the Special Tribunal is in accordance with the law, as Collector has power to sit in revision over any Order passed by the RDO. Fufther', the respondent N,r.5 has no 2a authority to decide title and went beyond the jurisdiction conferred on it.

57. Learned Counsel lor the respondents also submit that, the Order passed by the respondcnt No.5 cannot be sustained, as it cannot be presumed that this Court in W.P No. 25260 of 20ll having directed to examine the rights ol the parties, since, the provision under Section 55 of thc Act only deal with execution.

58. Further, it is subrnitted that even though respondent No.7 under Section 54(3 ) the Ordcr rvas tried to be sere the order dated 21.10.2005 passed under Section 54(3) ofthe Act through MRO, as the same was relused by the petitioners, the said order has attained hnality and thc consequcntial proceeding under Section 55 of the Act cannot stand scrutiny by this Court.

59. Learned counsel subrnitted that the subject property is Inam land for that reason it vests with thc State, and Zainab Bee who is the predecessor in title ol the petitioners herein was not competent to execute the sale deed. Irurlher it is submitted that the sale deed is illegal as pcrmission lrorn the Waqf Board under Section 51 of the Act, was not obtained by the petitioners.

60. Learned counsel lor the respondents further submits that, the petitioners herein becan-re aw'are ol- thc Gazelte notification in 29 the year 201 I as such filing the present Writ Petiti:n in 2020 is belated effort. Further, the petitioners have not challenged the Gazette Notifrcation within one year from the date ol publication of the same, as specified under Section 6 of th: Waql- Act. Therefore, they are prohibited from challenging the Gazette at this stage. 6t. It is further submitted that, as per the notil'icati,rn issued it is not necessary to make a claim by the Board in resoect of Waq l' Property for the reason that even if Gazette Notif ica tion is sct aside the property still remains as the waqf propertl by apptying the principle of 'once a waq1f, always a waqf . Furller. as per thc present petition the disputed questions of fact catrnot be gonc into under Article 226 of the Constitution ol lndia thus, alternative remedy is available to the petitionets herein under Section 83 of the Act. Thus, the present W.P is not nraintainable V. Considerations of this Court: A. Issue in respect of the Tribunal's power to review its own order:

62. It is to be noted that, the Special Tribunal has n,r power to review its own order dated 15.02.2021 more so u hen the vetr 30 same order has been set aside by this Court vide order dated

16.04.2021 in W.P No. 6840 of 202l.ln rhe present case, the Special Tribunal cannot by any stretch ol irnagination sit in appeal over the decision of this Court. The same also amounts to impropriety and if taken at face value amount to gross and willful contempt.

63. The Hon'ble Supreme Court in K.M. Shankarappa (Supra) has held as under

7.....Thus, Section 6(l) is a Iftnest)t of'the rule of law which is one of the basic structures of the Constitution. The legisluture may, in certain cases, overrule or nullify a judicial rtr executiyc decision by enacting an appropriate legislation. Hot,ever, wilhout enacling an appropriate legislation, the ex.ecutive or the legi.slatur-e cannot set al naught a.judicial order.

64. Further, the Special Tribunal is vested with jurisdiction under Section 9 of ROR Act 197 I (hereinafter. referred to as '1971 Act') in respect oforders passed under the 1971 Act by the RDO under Section 3,5, 54. and 58 in respect ofany record of rights prepared or maintained by MRO or RDO and cannot assume jurisdiction beyond what is prescribed under the Act.

65. Further, on repealing of the Telangana Rights in Land and Pattadar Passbooks Act l97l and in its place New ROR Act 2020 coming into force, it is only the pending appeals and 31 revisions that would get transferred to Special Tribural and does not confer jurisdiction over new matters unlesl; r-rntil the statue/enactment under which the Special Tribunal is conferred with such jurisdiction. Thus, order of the respondent No.5 dealing with the claim of the petitioners viz-a-viz., the claim of the respondent No.7 could not have been considered rs a dispute arising under the ROR Act 1971 for the Special fribunal to assume jurisdiction. Though the petitioners has raised the specific plea in this regard before the Special Tribuna there is no whisper in the order of the Special Tribunal on this aspect. This itself makes the order of the Special Tribunal vitiaterl, including Special Tribunal order dated 15.02.2021 which was :;et aside by this Court in W.P. No. 6840 of 2021 .

66. Further, the order of the Special Tribunal can bc rcviewed only if it is vested with the power of review by express F,rovision or by necessary implication and it cannot review unless such power is expressly conferred on it by the statute. Mor:o.'zer, once the Tribunal has issued its order and become./rz nctu.s o/Jicio, it I cannot fopen or review the matter, thereby ensuring finality and 32 certainty in its decisions (See: Kuntesh Gupta v. Hindu Kanya Mahavidyalaya2a antl SBI v. S.N. GoyaFs).

67. It is trite larv that, at the appeal is a creature of the statute and the right to appeal inheres in no one. Therefore, the assumption of jurisdiction by the Special Tribunal is per se illegal and cannot be countenanced.

68. The Apex Court in (/.P. Awas Evtm Vikas (Supra) has held as under:

39. .....A righl of appeal is conferred by, statutc or cclLtitalcnl legislative aulhority,. it is not a mere moltct. t1/' prctctice or procedure, and neither lhe .superior nor the inJeriot- court ot. Tribunal nor both combined c(rn create or take avuy such a right

69. Funher, it is to be noted that, in respect of the appeal hled before the Special Tribunal the issue that arose as to whethcr the collector has power to sit in revisions over any order passed by the RDO is that, the eviction order passed by the CIJO under Section 54(3) has not been cl.rallenged rlrerefore. the consequential order passed by the RDO under Section 55 also cannot be challenged in the writ petition, is against the decision "( tq87) 4 SCGsa5 "1zoot,1 a scc ez' 33 of this Court in Atlapapt Venkata Reddy (Supra)r6 wherein it has held as under

8.....Once it hos emergcd that the 3rd respondent has n 1tas.;ed uny order uncler sub-.section (3) tf Section 54 oJ' the Att, the occasion to requisilion the lst respondent lo t'vi< t the encroachers does not arise. On this ground alonc lhe tmpugned order is liohle lo be sel aside. ITence, the writ peti,iorts urc allotved and the intpugned order is set aside.

70. It is also perlinent to note that the Special Tr bunal is the creature of the statute and can only exercise juri;diction and powers which are specifically delineated under the ('nactlnent or statute. Since, the ROR Act 2020 under which the Special l-ribunal derives its powers does not specially provi(le lor porver of review the tribunal at the first instance ought not to have enteftained the review petition filed by the perition on

06.04.2021 and further pass order therein dated 11.0',t.2021 by which time the order under review seize to exist on account of order passes by this Court in W.P. No. 6840 ol 2021 clated

16.01.2021. Thus, on this ground also the impugrrecl order is liable to be set aside.

71. It is pertinent to note that, once the suit for recovery of possession vide O.S. No. l7 of 1971 was filed by the Waql'Board 3 At.D 105 "(20 04) t 34 is dismissed vide order dated 05.02.1972 and a subsequenr suit vide O.S.No.33 of l97l for declaration of title and recovery ol possession filed by the Waqf Board is also dismissed wherein, the Waqf Board has made a categorical avement that since 195 t V. Bhaskar Rarna Rao i.e. petitioner No. I 's father was in possession of the subject property, invoking sumlnary remedy by issuing notice under Section 5a(1) of the Act and thereafter alleged to have passed an order under Section 5a(3) oi the Act dated 21 . 10.2005 at this stage after having lost suits and after the rights been extinguished under the law of limitation, i.e. after. 45 years after the execution of registered sale deed in favour of the petitioners cannot be countenanced. Thus, invoking the summary remedy to recover possession would be irnpermissible by applying the principle as laid dorvn in Thummala Krishna Rao (Supra) wherein it was held as under:

6. .....The summary remedy provided by Section 7, according to the Division Bench, cannot be resorled to "unless there is an auempted encroachmenl or encroachment of a very recenl origin" and further, that it cannot be availed of in cases y,lrcre complicated questions of title arise for decision.

72. Therefore, in the present case the Tribunal when already has passed an order it cannot at a subsequent stage review its own l 35 order dated 15.02.2021 which has been set aside lry this Court vide order dated 16.04.2021 in W.P No. 6840 of 2021. B.Issue in regard to Respondent No.5 iurisdiction and authoriW to decide title:

73. It is pertinent to note that, this Court in W.P.No.25260 of 20ll while setting aside the order dated 25.08.20211 had issued following direction: ''5. Accordingly, the order, datecl 25.08.201l, p,tssed by respondent No.2 is hereby set aside. The authorities an. dreLled to issue notice to the petitioners herein calling for exolanation with regard to their right over the subject property and give an opportunity to submit lheir arguments along with ali rtlevanl documents to subslantiate their claim over lhe said property. The authorities shall also hear all the parlies concerned and pass appropriate orders afresh. "

74. Funher, the order of the respondent No.5 makes it crystal clear that the finding given therein is not in rr:lation to adjudication of title of the petitioners but is limite<l to examine the prima facie trtle in relation to enforcement of order under Section 5 (3) of the Act by exercising powers unde.r Section 55 of the Act, which is a sumrnary enquiry. The sanre would be evident from the order of respondent No.5 which reads as under: "It is once again made clear thal in the light of the or,lers o_/.the Hon'ble igh Court directing this olfice lo receive explanation and examine the rights of the petitioner oter the properly m (),uestion fntnt which he y,as sakl to be evicted; this ofjice unalerlook the 35 exerci.ee oJ'examining the prima facic tille in this suntmary enquiry. In view of the abovc facts and circumslances, I am ol'tha opinion thal the l'age 5 of 7 6 petitioner, Venepally Bhaskara Rama Rao cannol be evicted from the land in queslion and the request of the Chief Executive OfJicer, Ilaqf Board under 3rd cited is rejecred. '

75. It is also to be nored thar, the Waqf Board did not challenge the Order passed in W.P No. 25260 of 20ll and thus, the said order has attained finality. T'hus, the respondent No.5 is bound to consider the claim of the petitioners as per the order of the High Court and for the said reason respondent No.7 cannot agitate thc said issue in the present case. Further, the contention ol thc respondents that the respondent No.5 was required to deal with only execution under Section 55 of the Act is without anv merit.

76. It is pertinent to note that, as per Section 55, the respondent No.5 is only an executing authority and camot decide any other issue which is against the purport of law.. Further, the concept of Claim Petitions in execution proceedings is well established under many enactments. Therefore, the Court had rightly directed the respondent No.5 to decide the claim before eviction Orders were implemented.

77. Since, the Waqf Board has submitted itself to the jurisdiction of the respondent No.5 and has participated in the proceedings without any demur or protest, without raising any 37 ground of jurisdiction cannot now tum around and say the authority had no jurisdiction because orders were p;rssed against it. Such a proposition cannot be countenanced in law . C.lssue relating to service of the order under Section 54(3):

78. It is pertinent to note that. it is specific case of the petitioners that the order dated 2l.|O.2OO5 purported to have been passed under Section 5a(3) of the Act was n()t served on them. Further, petitioners have specifically pleadcd that only when notice under Section 55 of the Act has been ir;sued by the respondent No.5, the petitioners have learnt of the fact that respondent No.7 is claiming to have passed an order and seeking eviction of the petitioners lrorn their land, and has ib rwarded the alleged proceedings after lapse of6 years to respond€nt No.5 and based on the said communication the respondent |Jo.5 having issued notice dated 25.08.2011, the petitioners have approached this Court by,filing W.P. No. 25260 of 201t.

79. Despite the petitioners assailing the order of the respondent No.7 alleged to have passed under Section 54(3) of the Acr in the W.P. No. 25260 of 201 l, neither in the said Writ pelition nor in the present Writ Petition the rcspondent No.7 did nol controvert the said assertion rnade by the petitioners on oath, b., flling any \ \ 38 document to show the service of the order passed under Section 54(3) of the Act by considering the explanation submitted by the petitioner on 31.05.2005 to the notice issued under Section 54(1) of the Act. Thus, the submission made to this Court on behalf of iespondent No.7 that on the said respondent No.7 passing the aforesaid order, having tried to serve the same through MRO and the petitioners having refused to receive the same in the considered view of the Court is only a self-serving statement and does not merit consideration

80. It is also interesting to note that while the respondent No.7 claims to have passed the order on 21.i0.2005, instead of serving the said order by himself either as prescribed under the Act or: in the manner known to law, is claiming that the said order is sought to be served on the petitioners through MRO, who is no way connected with the proceedings initiated by respondent No.7 under the Act for him to effect the service of the orders passed by the respondent No.7. Thus, this Court is of the view that as noted hereinabove that the claim of the respondent No.7 of petitioners refusing to receive the order sought to be served on them by MRO is only invented for the purpose of this case. 39

81. It is also perlinent to note that the show cause notice dated NIL.10.2004 which was served to the petitioners ott29.03.2005, has also not been denied. The peiitioners having submitted explanation on 31.05.2005 to the said notice, it is rot shown to this Court that the petitioners being issued with a ny notice of hearing before passing of alleged order under Sec.ion 5a(3) of the Act dated 21.10.2005

82. It is known proposition of law that once the order by hand is refused, the order has to be served by Regist,:red Post Acknowledgment Due (RPAD) on the parly. Hovrever, in the present case, no material whatsoever is adduced to show that the order under Section 54(3) was sent by RPAD. Therefore, the issue of non-service of order under Section 54(1) has been established by the petitioners and the contention to ..he contra of the respondent No.7 is liable to be rejected. D.Issue regarding comDetence of Smt. Zainab Ber: to execute sale deed and its validitv:

83. It is to be noted that, the respondent No,7 c,n one hand claims subject land as Waqf land being a service Inarn:Lnd on the other hand claims that on abolition of Inam under Andhra 40 Pradesh Inarn Abolition Act of I 955, the property becomes the state propefty. The said stand of respondent No.7 is selfl_ contradictory for the reason that. il. it is onty a waqf property then the respondent No.7 would have jurisdiction to claim the proceedings initiated for it to be valid. On the other hand if the propefty is vested with the state, the respondent No.7 lacks jurisdiction and all the proceedings initiated by him would be void ab initio as the respondent No.7 is not authorized to act on behalfofthe state.

84. Further, as per Section 9(l) of the A.p. (Telangana Area) Inams Abolition Act, 1955, every private building on a Inam land shall from the effect of the date ofvesting, vest in the person who owned it immediately before that date and the or.rly condition under Section 9(3) of 1955 Act, is that the owner of building shall pay non-agricultural tax. The provision reads as under : Section 9. (l) Every private building, situoted \uithin an inam shall, with effect from the date ofvesting, vest in the person who owned it immediate ly before that dote. (2) Where an inam land has been converted for any purpose unconnected with agriculture, lhe holder of such land shall be entitled to keep the land provided that such conversion was not void or illegal under any law in.force. (3) The vestings of private buildings or lands under sub-section (l) or (2) shall be subjecl to the pdyment of non-agricultural assessmept thcrl may be imposed by Government from time to lime. 41 85, In the present case the date of vesting is 01.i1.1973 and, prior to the said date, I't petitioner father obtained perrnission from the District Collector on 21.12.1962 lor consr.ruction of cinema hall, as is evident frorn perrnission proceedings that in the subject property and two theaters were construcls,l in the year 1964 and 197 I and the same were running contirruously since then as evidenced by license renewals

86. Therefore, prior to this date of vesting, rhc.re was a building existing on the subject land which \ /as owned and possessed by the petitioners (other than the lnamdar). Irufther, as per Section 9(c) the petitioners herein have been paying non- agricultulal tax as evidenced by demand notirre for non- agricultural Iand assessment.

87. Thus, by applying the provisions of Secrirn 4(c) and Section 9(l ) of the A.P. (Telangana Area) Inarns ALrolition Act, 1955 the owner of the building becomes the ov.nc.r without having to be registered as an occupant. Thus, even as pr:r the case of the respondent No. 7, the ownership of the sulrject land squarely vests with the petitioners herein 42

88. In respect of the issue as to whether Sale Deed dated

14.12.1961 executed in favour of petitioner No. I father is illegal, as permission from the Waql Board under Section 51 of the Waqf Act, was not obtained, it is to be noted that when the dlienation happened in 196 l, filing of application under Section 51 of the Act becomes preposterous as the subject property was Gazetted only on 22.02.1990. Even the bar under Section 36-,4. of the Act, would not apply as the subject property was never Waqf prior to the issuance of notification in the year I 990.

89. It is also pertinent ro note that, the ROR Act, 1971, applies only to agricultural land and does not encompass non-agricultural properties. It is an admitted fact that the subject property has been used for non-agricultural purposes for over 60 years. Given this prolonged usage, the provisions of the ROR Act are inapplicable to the propefty in question, and thus the respondents cannot validly claim it agricultural iand to invoke the ROR Act. The long-standing non-agricultural use effectively negates any assefiion that the propeny is in agricultural land given as service Inam given for Ashoorkhana, and consequently, the claim of the 43 respondent No.7 of the subject property to be a waq. ntust fail as a matter of law and fact.

90. Further, the respondent No.7 has suppressed the fact ofthe suits filed by the Waqf B oard vide O.S. No. I 7 of l1)7 I and O.S No. 33 of 1971 resulting in dismissal, has invok:d summary enquiry invoking provisions of Section 54 of the Act which act it is to be held as malafide. Further the sale deed of the petitioners was also never challenged, in which case under the provisions of Order II Rule 2 C.P.C., the Waqf Board is barred fiorn making any challenge to the said Sale Deed (See: H.K. Dhruv (Supra)).

91. Further, the claim of the Waqf Board is barrr:d in law as there is a presumption that when a registered docume nt is validly executed it would be prima facie be valid and further it is settled law that until and unless a Sale Deed has been carrcelled by a proper declaration, it is valid and binds the pafties ir the eye of law (See: Prem Singh (Supra) and Ramti Devi (Supra)).

92. It is trite law that, the admission of a party in the proceedings either in the pleadings or oral is the best evidence and the same does not need any corroboration. In the facts of the present petition where a categorical asseftion was nracle by the 44 petitioners rhar the two suirs i.e. o.S. No.t7 of l97l and o.S. No.33 o[ 1971 filed by the Waqf Board for recovery of possession and declaration of title respectively being dismissed, as admitted by the Waql Boald in theil Counter, the same does hot need further corroboraLion (See: Ahmed saheb (Supru))

93. Thus, the issue regarding the competence of Smt. Zainab Bee to execute sale deed in favour of petitioner No.l father cannot be agitated again and again. E. Issue resardins challensin g the Gazctte Notification:

94. In regard to the issue of not challenging the Gazette Notification within one year under Section 6 of the Act is concemed, it is to be noted that, the Gazette Notification IS binding only between the Muthawalli, the Waqf Board and the person interested. The petitioners herein being non-Muslims are not bound by the Gazette notification and the embargo ol one year under Section 6 does not apply to them.

95. The Hon'ble Supreme Court in Boord of Muslim l{aqlfs (Supra) has held as under:

38. We are in agreemcnt with this reasoning of the lligh Court

39. It follow.s thal where a stronger who is a non-Muslim and is in possession of a certain proper\,his right, titlc and inlerest therein 45 cannol bc put injeopardy merely because the property ,.s included in the li.st. Such a person is not required to /ile a wit Jbr a declaration of his title wilhin a period ofone year. The sretial rule oJ-limitation laid dou,n in proviso to sub-section (t) o[Scction 6 is ndt dipliadble to^ him. Ii other words. the [ist publisltcd bl the Bourd o/ ll/aqfs under sub-section (2) of Settion 5 .:an ba thullenged by hint by.filing a suil for declaration of title ev()n ((ier thc cxpiry of the period of onc year, if the necessity of .,,ilittg .tut:h suil drises.

96. F'urther', in regard to the respondents contention that the petitioners became aware of the notification in the ,,ear 201 I is concemed, it is pertinent to note that, there was no order passed adverse to the interest of the petitioners requiring it Lo challenge the Gazette Notification. When the respondent l.lo.5 passed orders oI eviction against the petitioners, the same was challenged in W.P. No.25260 of 2011 which was :;et aside Subsequentll,, the respondent No.5 passed orders relusing evl c tiorl As such only when the Tribunal by wrong y rssuming jurisdiction relying upon the Gazette Notification passed orcler dated I 5.02.2021 , the rights of the petitioners were irllected and as suclr, the petitioners filed Writ Petition. Even other.wise, delay is not a ground to refuse a relief in Writ petition wher strbstantial rights and interest in immovable property of the parties are involvcd (See: Vitl.ya Devi vs. State of Himachal pruiesh27). " 120201 : scc 56,.r 46

97. In respect of the contention raised by the respondents that even if Gazette Notification is set aside the property is still remains a Waqf as ,once a ti/aq1t always a Waqf,wherein, it is to be noted that, once a r.ight extinguished as per law of limitation, the necessary corollary which would lollow the right of the Waqf Board would stand extinguished. Further the concept of .once a Waqf always a Waqlf' would not apply to the factual situation of the present case as the waqf Board itserf fired suit for decraration of title and the same was dismissed and it has been unable to establish that the subject property was Waqf propefty (See: T. Kaliam.urthi v. Five Gori Thaikkal tyoqft).

98. In this regard the contention that the property would continue to stay Waqf ir.respective of it being notified and the fact that the notification is set aside are both untenable contentions and are contrary to the judgment of the Hon'ble Suprenre Court of India in T. Kaliamurthi (Supro).

99. It is also pertinent to note that, the irnpugned gazette dated

22.02.1990 atpage No.248 in serial No. l4505issued with respect to the waqf properties did not mention the file number, whereas '"1zoosy 9 scc:06 47 the other corresponding properties in the same list nLentions their respective file numbers. Further, the Gazette Notification whereby the land of Ac 6-24 gts to be waqf property forming part of the Sy Nos.119,35 and 34 does not speciff thr: extent of land lalling in each of the Survey Number aggreilating to the total extent ol Ac 6-24 gts notified as waqf land. If only a surwey was conducted on ground as claimed the extent of land in each of the survey nurnbers would have found mention in the gazette notification the non-mention of the aforesaid details clearly lends credence to the claim of the petitioners that the survev \lras only a paper survey without thereby being a physical sunrey on the ground

100. Thereflore, the impugned gazette issued by the respondent No. I afier 29 l cars where all its rights being extinguished cannot be countenanced. By virtue of the impugned gazette, the limitation prescribed under Waqf Act had also ,:ompleted Further, prior to the publishing of the impugned Gazette,, the petitioners herein were in peaceful possession and en toyment of the subject irroperty. Therefore, the right ',vhich stood extinguished as per the Public Waqf (Extension cl l-imitation) Amendment Act, 1959 cannot be clandestinely re' ived and the 48 Section 107 of the 1995 Act, is prospective in nature and would not apply retrospectively. The erstrvhile High Court of Andhra Pradesh in Managing Commiltee Mtsjid-e-lbrahimia (Supra) has held as under:

14. ......the petitioner-plaintiff Eannot be heord to contcntl lhlt lhe bur contained therein, is applicable even lo execution petitions, and more so v,hen the Waq;[ Act is nol given ony relrospeclive effecl. l0l. It is pertinent to note that on the contention of the respondents, that the petitioners constructed cirema halls and buildings after taking the requisite allegcd Survey report showing that there are no occupants and the land is vacant is without any basis. Further, it is an admitted fact that the date of the alleged Survey according to the Waqf Board is 01.07.197 I but the date of Gazette is22.09.1990, which clearly shows gap of 19 years lrom the date the atleged Sulvey till the date of publication. The long duration between the conducting of the alleged survey and the date of publication renders the survey contrary to the Waqf Act. Accordingly, the Division Bench of this Court in L. Srinivasa Reddy (Supra) has held as under:

16. A learned Single Judge of rhis Court, in II.P. No. 9378 of 2009, hy order dated 06.02.2012, while dealing with the very sama notification, dated 09.02.1989, in respect qfSy. Nos. 302 and 303 rf this very same villoge i.e. Mamidipally Village, under similar set offacts, has held as under: 49 " From this, it i.y clear lhat o detailed survey i-s required t".t be conducted. 'l'he publication of the notifcation musl b': soon, lhough not immediala, a/ier the survey. The reason is tJ'at, any evenls. Ihat occur belu,een lhe d(rte of survey, and .kle o.f publicatbn o/ the ruttificatiott vlould render the very txercise ./itttlc. U ary sub.ttantial tlevclopment takes place belv:en the lvlo event\, Ihe surtc,u,contlucled earlier con nol al all constitule tha bosis.fbr publictttktn. Even otherwise, unreasorubl'; a'elay v,ould dejeut the verT objcclive, underlying the provision. It vvtrs tytr, back in thc yeur 1960, that the survey in re:pect d the lund iir Sr'. ,\'os. 299 ro 306 of Mamidipally village was conductetl under Scctittrt I of the Waqlf Act, 195]. The publication lrus ntodt ortly in lhe year 1989. ln lhe period of three dccades, lhal ho:; inlervened, several legislatir'e and odminislrutir.c changes huve laken ploce. The Inams Atl came into.lbrca, und in tha course of its implemenlation, tht ORCs were granted in respet'r of the lands. Itad any sutrer,' L)een conductctl intntediatcll ltreceding the publication in tl,e lear 1989, thc.fhtt lhot thc p(tilioners or lheir predecessors in title hud in yt.s.scs.siott and ctloyment of the property, as ohsc'lute owners or v,ere issucd ()ROs; coultl have been ruttictd, and issuance o/'notiJiccttion voukl certainly have become doubtful. Ily no slralch oJ imaginotion, lhe survey conducled in ttle -veor 1960 tan be sttitl kt hc tltt' busis -[or publicalion of a noli,'icution in the .y'cur 1989 Thcralore. the notificalion dated 09.(t2. i 989 cunnot b( suitl lo bc inconlbrmity with the provision.t oJ the W'aq/' ,1ct 'l his ('ourt, in B. Gowt Lt Reddy's case (supra) dealt u ith the manner in vhich thc noti.ficotion under challenge herein was i.s.sucd, ani cxpra.ssetl tfu r'ictt thttt it does not accord wtlh tart. I'ltc principlc laid dovrn lherein covers the facts of lhis ':ttse o lso.

102. Further, the Hon'blc Supreme Court in Sabir .4li Klton v. Syed Mohtl. Ahmatt Ali Khan and Others2e has held as under: t'2023 scc onl-ine sc 415 50 68 'lhe argument that Section 107 of the Act wi assist the appellant in tiding over the bar of limitation does not appeol to us. Section 107 of the Act, no doubt, proclaims that nothing rn the Lintitation Act, 1963 shall apply to ony suit Qor possession of the immovable property comprised in ony waql[ or.for lto.tst.ssion of any intcrest in such property.

69. 7ha Act came into force on 01.0t.t996. The./irst sale was effuctctl on l l. 10. I 960. The second sale was effecred on 26 09. 1971. As far as the first sale is concet.ned, yve httve alrco$./bund that Arlicle 96 cannot be pressed inlo service as lhe transfer u)as no! purported to be matle by the Mutawalli. The door.s stood open /or the application of Article 65. As far os thc .second sale is concernid which wos effected in lhe year 1971 in t,icw of our Jinding rhat Article 96 wos not applit.able. the only other competing Article vying for acceplance, appears to be .lrticle 65. Applying Article 65 and as the culvcrsa pos.\cs.ttotl would kick in from the date of the transfer. on rhe expirS, ol' tu,elve years, i.e., in 1986 applying Seclion 27 ofthe Linitation lct whatever tille remoined within the neaning oJ. Sectiott 65 would stand extinguished. The Act was brought into fitrtt onl.v with efiect /rom 0 t.0 l. t 996. I e cannol understqnd the p r?ort of Section t07 to be that ir would revive un extingui.shed litle os nothing stood in the way of running of timc .front the date of the second sale under the law as il sloocl.

103. Funher, the respondent \o.7 has not placed any material on recol'd whatsoever to establish that the subject property was ever WaqL Further, the pleadings in the Counter were also silent as to (i) when was rhe waqf formed, (ii) how the dedication was made, (iii) details of the waqf nama/gift deed, (iv) the activiries of the waqf etc. In tl.ris regard there is absolutely no documentary evidence to show that there was a dedication/Waqf made in accordance with {aw at any'tiine' ".j'tfr"'*pigr;a-giztit" ir - "' 51 puryortedly published 19 years after the alleged survey after failing to obtain a decree lrom the Civil Court on two separate occastons.

104. It is also perlincnt to note that, the entire counter of the respondent is silent as to how the dedication wrs madc and fuilher there is no proof of the dedication in the pleadings which is supported and also no documentary evidence is placed to establish that infact a waqf was made in the subject land'

105. On the contrary, in thc survey report, it is categorically mentioned that no activity on the subject land relate1 t'r the Waqf such as ' (Jrus etc.' was ever perf ormed. The surv<:y report also clearly shows that there is no WaqlDeed or Hiba in favour of the Waqf and there was nothing in rvliting to show that the original pattadar ever tnade a Waqf in respect of the sub.iect property. Therefore, the respondent No.7 could not hav.: unilaterally decided that the property as Waq| without recording any reasons as to how and why the prope(y is included as rvaqf more so having lost the suit lor declaration of title. (See: AP 'gtote Waqf Borad (Supra))

106. Further, a perusal of the strrvey report wotLld indicate a patent discrepancy as to the details of the waqf property as 52 mentioned therein. [n the Fonn of Proforma for sulvey of waqf properties under which the respondent No.7 claim to have conducted survey, SI.No. ll thereof provides for the details of waql propertl,; against the said entry in the Form, the survey numbers mentioned are Sy.Nos.33 , 34 and 1 19. 'thus, as per the report, the survey is purported to have been conducted in respect of said survey nuntbers mentioned therein. However, in the impugned GazeLte Notification issued, the survey numbers menlioned are Sy.Nos.34, 35 and I19, without there being any sun ey conducted in respect of lands in Sy.No.35. This glaring variation reveal the lundamental enor in the identification of the propefly and also casts serious doubt on the manner and authenticity of the claim ol respondent No.7 of having conducted survey at the relevant point of time.

107. Furtl.rer, the respondent No.7 had claimed of survey having been completed in I97 I and the report having been lorwarded to the Government lor issuing Gazette notification, though the respondent No.7 claimed to have conducted survey in 1971 and noting the details in the form of proforma, a close scrutiny ol the Form particularly the lefl hand comer would show that 40,000 copies of the said l;orm having printed on 2l .06.197 5. This 53 raises a serious doubt as to the claim of respon,lerrt No.7 of having conducted a survey and submitting the repor..

108. It is also perlinent to note that in the Fonn of prrtforma for the survey in Serial No.8, the details of 'lf in un,tuthorized possession- particulars of- trespassers ' is required to bc noted. Against the said entry in Forrn, it has been left'blank', implying that at the time of the alleged survey, there was no unauthorized occupation or trespassers over the subject propeft),. However, the fact of the petitioners having constructed a cine ma hall way back in the year 1964 after obtaining necessary permissions, would show that no actual survey was in flact conducted as contended by the petitioners. If only, an actual survey was conducted on the subject land, the existence ol a stlucture namely cinema hall could not have escaped liom th: Surveyor's view for it to be noted in the lorm. Thus, the allel;ecl claim of respondent No.7 having conducted survey in the ,ear 1971 IS only a make-believe.

109. Therefore, this Court is ol the view that notwithstanding the long gap between the alleged Survey conducted undcr Section 4(3) and the publication under Section 512) wou ld not only render the notillcation issued invalid, on acccunt of the 54 observations made [.rereinabove, would lead to inevitable conclusion that in fact no survey was actually conducted as the time at that time as alleged by issuing notice to person in occupation of the subject [and, for the impugned gazefte irotification to be sustained. F. lssue regarding Dowers under Article 226 to po into disnuted uestion of facts:

110. It is to be noted that, a gazette notification can be challenged under Article 226 of the Constitution of India by invoking the writ jurisdiction of the Court and Section g3 is no bar for the same and the said.issue is no longer r.es-integra as per the decision of this Court in Gosula Ramulu (Supra) wherein it has l-reld as under:

65. Bul the ?'ribunul has not brcn conferred jurisdiction uwler lhe Act to decide the validity of thc action of the State Government in publishing in the Gazette under Sec.5(2) of the Act. No provision of the Act is brought to the noticc o.f the Court by tlrc respondents other than lhe above referred provisions regarding power of the Wad Tribunal to decide the wrlidity of the Gazeue publication by Counse l.for respondenls. Z-!-. lf C-!yi-! .p_oyrts jurisdictio-n..in fqlqli.glt t9- 9ye!y- ryqllgr_rglgr\I to Waqlf or Waqf propcrty is nnt ousted, then neither can the High Courts jurisdiction be ousted.

76. I have already held that the llraqf Tribunal has not been conferred jurisdiction under Section 6 ond 7 of the lltaqlt Act, 1995 to decide the validity of lhe ttction of the State Government in publishing in the Gozette the notificdtion notifying list of lyaqf 55 properties. Therefore the Writ Petition nos. 20168, .'0169 and 20470 of 2006 chollenging such a Gazette notifi(aticn are maintuinable. A similar view was also taken in A. P. State lyaqlf Board (Supra)wherein it l.ras held as under:

122. Thus, the Sldle Governmenl, as u iuristic entity, hd: u right to protect its property through the writ colu'|, just as ary) irulividual could have invoked the jurisdiction of the High C'ourt. Thcrefore, the State Government is competent to invoke the terit j'o i';diction against the action of the Waclf Board to declare the larul mc'tsuring 1654 acres and 32 guntas as waqlfproperty.

111. At the outset, the powers under Article 226 of the Constitution of India are very wide and the restrictic,n i1s regards exercise jurisdiction by the High Court where alternate remedy exists is self-imposed. Furlher, there are no disputed questions of fact in the present case. The Hon'ble Supreme Court in Radha Krishan Induslries v. State of H.P.30 has held as untle r:

27.1. The power under Article 226 ql the (:onstitutiun to issue writs can be exercised not only ./br tha enJbrccnient of fundamental rights, but for any other purpose us well. 27.3. Exceptions to the rule of allernale remedy arise t hare : (a) the wril petition has been filed for the enfbrcenrent of a fundamental right protected by Part III of the Constitution, (b) there has been a violalion of the principles of naturul 1u.;rice; (c) the order or proceedings are wholly wilhout jurisdictnn. or (d) the vires of a legislation is challenged. 27.4. An alternate remedy by itself does nol divest the I [igth Court of its povers under Article 226 of the Conslilulrott in un appropriate case though ordinarily, a writ petition should not be '\zozry o scc llr 56 entertdined wlrcn an elficackttts olte rnate remedy is provided by law. 27.5. When a right i.t created by a statute, which itself prescribes lhe remedy or procedure.for enforcing the right or liability, resort must be hod to that particular stotutory remedy before invoking the discretionarlt remedy uncler ,4rlicle 226 of the Constitution. This rule of exhaustion of'.ttahtlory renetlies is a rule of policy, convenience attd discretion. 27.6. ln cases where thcre are disputetl questions offact, the High Court may decide to decline .jurisdiction in a v)rit petilion. Howeyer, f the High Court is objectively of the view that the nalure of the controvers-y requires the exercise of its v,rit jurisdiction, such a yiev, wou.ld not readily be inter.fered with.

112. Furllier, after the conclusion of arguments, though, the counsel for the respondent No.7 has raised a conteution that in respect of Inam Abolition Act, thc crucial date for determination is not the date of vesting but the date on which the Act carne into force, it is to be noted that tl.re said contention cannot be allowed to be raised at this stage, in the absence of any plea being taken by respondent No.7 in its counter or in any earlier proceeding. VI. Conclusion:

113. In view of the above, the Writ petition vide W.p.No.2l210 of 2021 is allowed, and the Andhra pradesh Gazette bearing No.8-A Part-2 d,ated,22.02.1990 at Serial Number 14505 at page No.248 in respect of land in Sy.No.35 admeasuring Ac.l_22 gts equivalent to 7000 sq. yards situated ir.r Nalgonda Town is set aside. 57

114. Insofar as W.P.No.18633 of 2021 is concerned. this Courl is of the view that since the Special Tribunal by tlc mpugned order dated 1l .07 .2021 had reviewed its earlier ordel dated

15.02.2021 which order was subject matter of considcration before this Court in W.P.No.6840 of 2021 and this Court by I t order dated 16.04.2021 having set aside the sairl order and remanding the matter back to the Special Tribr nal Special I I Tribunal for fresh consideration, the purported exercise of revierv power in the absence of any specifrc power being r:or f-erred by the ROR Act not only makes the said order vitiar.ed but also without sanction of law apart from the Special l-riburral sitting in judgment over the order of this Court in W.P.No.6ll40 ol 202 I which is not permitted in law, apart from the said rrction bein*q highly deplorable but also amounting to contempt. lI5. Accordingly, W.P.No.18633 of 2021 is allorved and thc order of the Special Tribunal No.F2lSpl Tribunal/0253/202 I (Old Case No.FZl23l/2019 before the Old Revr:nue Coun. Additional Collector), dated 11.01 .2021 is set as de and thc matter is remitted back to the Special Tribunal, Nalglonda fbr- consideration afresh in terms of order passed in W.P.N,I.6840 ol'

2021. Further, the Special Tribunal while adjudicating the matter 58 afresh, is directed 10 take note of the order passcd by this Court in W.P.No.212I0 of 2O2l As a sequel, miscellaneous petitions pending if any shall stand closed. No order as to costs \ To //TRUE COPY// SD/-N. SRIHARI EPUry REGISTRAR I ECTION OFFICER '1 . The Principal Secretary, Revenue Department, Secre riat, State Of Telangana at Hyderabad. Telangana.

2. The Secretary, Minorities Welfare Department, Secretariat, State Of Telangana at Hyderabad, Telangana.

3. THE DISTRICT COLLECTOR, Nalgonda District, Telangana State. 4. THE ADDITIONAL COLLECTOR, Nalgonda District, Telangana State. 5. THE REVENUE DIVISIONAL OFFICER, Nalgonda District, Telangana State. 6. THE TAHSILDHAR, Nalgonda Urban Mandal, Nalgonda District, Telangana State.

7. The Chief Executive Officer, TELANGANA STATE WAQF BOARD, Nampaity, Hyderabad, Telangana State.

8. Two CCs to GP FOR REVENUE, High Court for the State of Telangana at Hyderabad. [OUT]

9. One CC to SRI ZEESHAN ADNAN MAHMOOD, Advocate [OPUC] 10.One CC to SRI NAZIR AHMED KHAN, Advocate (OPUC) 'l'1 .Two CD Copies SA LS HIGH COURT DATED:2010612025 COMMON ORDER WP.Nos.18633 AND 21210 ot 2021 \ ti $3 sEPr tlr.'l:, l$25 \---- .: ')' -r _-:-:.._:- _i. . ;.:-'- ALLOWING BOTH THE WRIT PETITIONS WITHOUT COSTS. t?'b l{