1 Gunnala Sunitha v. violative of Article 14

Counsel forthe Respondent No.1: SRI FARHAN AZAM KHAN, SC FOR WAQF BOARD Counsel for the Respondent No.2: cP FOR SOCIAL WELFARE The Court made the following: ORDER THE HONOURABLE SRI JUSTTCE B. VTJAYSEN REDDY WRIT PETITION No.16l63 0F 2024 ORDER: (ORAL) Leamed counsel for the Petitioner submitted that the subject matter of the writ petition is squarely covered by the order of this Court in W.P. No.7567 of 2022 dated 18'07 '2024'

2. Recording the aforesaid submission' the writ petition is allowed in terms of order dated 18'07'2024 in W'P' No'7567 of 2022' The impugned Wakf Gazette notification No'6 dated 09'02'1989 and also addendum to the Wakf Gazllte notification dated 08'02'2007 to the extent of subject land (at serial No'109) i'e'' Acs'l9-36 guntas in Survey No.284 situated at Kongarakurdu (A) Village' Maheshwaram Mandal, Ranga Reddy District, is set aside and quashed' No order as to costs As a sequel thereto, miscellaneous applications' if any' pending in the writ Petition stand closed' SD/.P. P AS ADMAN SISTAN HA DY TRAR /TTRUE COPY" SE TION OFFICER To, w ertare Department' Secretariat' gd:T,"+T;"u [!ntv ' I?E ":i[xi: 3. one cc to M/s' aHeRA;;nL AssoclATES' Advocate toPucl 4. one CC to SRI fneUnrlp'Z-nr"r KHAN' SC FoRWAoF BoARD toPucl ]-:l ,. 5 Two CCs to GP FOR SOCfAL WELFARE, High Court for the State of Telangana at Hvderabad [OUT] Two CD Copies o (Along with the copy of order dated 18.07.2024, in W.p.No.7567 of 20221 / BSR Ur BS l I i AAv .:J \ f.\ Fr' ifl} lr-+ CC TODAY HIGH COURT DATED: 08/0112025 t \ ORDER WP.No.16163 of 2024 qR iHE s14 7 o r-) 2 1 JAir 2025 (; ,+ ( ( ! \ ALLOWING THE WRIT PETITION, WITHOUT COSTS ^quN ,rd'*\ q-$5 +.. HON'BLE SRI .TUSTICE NAGESH BHETMAPAI(A WRIT PETITION No. 7567 oF 2022 ORDER: The l"t petitioner claims ownership to agricultural land in Survey No.83 admeasuring Acs.3.00 at Kongarakhurd Village, Maheshwaram Mandal, Ranga Reddy District under a Memorandum of oral gift executed by his late father Mohd Khaja Khan, supported by the occupancy rights certificate dated

03.01.1998 under the provisons of the Telangana Abolition of Inams Act (for shor, 'the ActJ. The 2"d petitioner similarly owns land in Survey No. 264, spanning Acs.9.l4 guntas, in the same village and district, acquired ufa an occupancy rights certifrcate dated 17.03.1993. They have enjoyed unintermpted possession of the land, as did their ancestors before them. It is stated, revenue records have consistently reflected petitioners as pattadars and possessors, with no challenges from either the Waqf Board or revenue authorities. While so, at the request of petitioners, their land was converted from agr-icultural to non-agricultural use, however, when attempted to execute a sale deed, they encountered resistance from the Sub-Registrar's OIEce due to their property's inclusion in Gazette Notilication No.6, dated Oa.O2.2OO7 part II Miscellaneous Notifrcation, previously 2 Notification issued in AP Gazette No.6-A, Hyderabad dated

09.O2.1989 at Serial No.2l5l, which was issued under Section 5(2) of old Wakf Act, 1954, issued by the !"4 respondent. '[he action of the 2"d respondent in labelling subject land as waqf in the Gazette Notification is deemed illegal, arbitrary, arrd unconstitutional, violating natural justice and violation of Articles 14, 2l arrd 3OO-A of Constitution of India. It is stated, in several judgments including Writ Petitions No.25O76 of 2OO4 and 33133 of 2OL4, this Court had quashed similar notifications on the basis of the judgment in B. Goura Reddg a. Goaernment ol Andhr@ Pradeshl, establishing precedence for petitioners' case. Hence the Writ Petition.

2. Ort 17.02.2022, while issuing rule nisi, this Court directed the Writ Petition to be posted along with Writ Petition No. 189 of 2022; having regard to the orders passed by this Court in B. Goura Reddg's case, sirspended the impugned Gazette Notification and the oflicial respondents were directed not to interfere with the possession of petitioners in respect of the subject lands.

3. The Writ Petition is dismissed as withdrawn as regards the 2"d petitioner is concerned uide order dated.. or.o2.2024. ' aR 2oo2 ap 3 t: 3

4. In the counter-affrdavit frled on behalf of the 2"d respondent Waqf Board, it is stated by the Chief Executive Oflicer that petitioners claim ownership based on their long- standing possession and issuance of Occupancy Rights Certificates (ORCs) vide proceedings No. f/8886/1997, dated

03.01.1998 under the Abolition of Inams Act, 1955. The property in dispute including Survey Nos. 83 arrd 264 belongs to Dargah Hazratt, Syed Shah Raju Kattal Hussaini Rh, constituting part of a vast extent of waqf. This respondent accuses petitioners of misrepresenting facts to acquire valuable waqf lands and secure interim orders, causing irreparable loss to Waqf Board and Dargah Haztath Syed Raju Kattal Hussaini. It is asserted by the lna respondent that the lands in question have historical significance as waqf property, backed by olEcial records, such as Survey Commissioner Report, dated

18.07.2OO4, and conhrms that Survey Nos. 2 to 400 of Kongara Khurd Village was granted to Dargah Hzt. Shah Raju Qattal Hussaini by Sultan Abul Hassan Tanasha in 1665 AD and later released by the Nizam in 1937 AD. The Nazim-e-Atiyat's judgment of November 13, 196f , declared the entire village as inam land, recorded in the revenue records through Jama Bandi in 1965-66. Based on these frndings, an Addendum/Errata was 4 * issued on Oa.O2.2OO7 by the Board notiffing the lands as Waqf and incorporating them into Waqf Register. It is stated, D. Hzt. Syed Shah Raju Khattal Hussaini, as notified in the A.P. Gazette on 09.02.1989, encompassing Acs.12.0O as graveyard in Hyderabad city, overlooked. inclusion of service inam land in Kongarakhurd Village. Subsequently, after scrutinizing documents such as munthakab, revenue record, Survey Commissioner's report, notice from the Spl. Dy. Tahsildar (Inams) under the Inam Abolition Act, judgment of Nazim-e-Atiyat and a letter from Tahsildar Ibrahimpatnam dated 26-09-1966, an Errata/Addendum notification was issued. This corrective notilication was published in the impugned Gazette continuing the earlier notification from 1989, thus affirming its validity. This respondent provides evidence of propert5r's waqf status since time immemorial, supported by documents such as Muntal<ab No. 1680 issued by the government. possession ol the petitioner over the service inam larrds, designated as permanent dedication to the Dargah, is deemed illegal and un.lawful, notwithstanding their physical possession, as senrice inam land remains dedicated to Wakf purposes, thus unchanged in character. 5 It is stated, the total area of KongaraKhurd Village, comprising Survey Nos. 2 to 400 is errcroached upon by various individuals. The issuance of ORCs, Protected Tenalcy Certificates, Pattedar Passbooks, and title deeds in favor of certain individuals by the revenue authorities, despite knowing the land's service inam status, is illegal. Appeals against these actions are pending before the Tribunal. The lands, being waqf as Mashruthul Khidmath (Service Inam lands), were appropriately included in prohibitory list under Section 22-A of the Registration Act, 1908. The Government of Telangala, through G.O. Ms. No. 15, Minorities Welfare Department, dated

22.O9.2O2O, directed Municipa-I and Panchayat Authorities not to grant construction permissions on Waqf Iands : According to this respondent, the previous writ petitions cited are irrelevant to the present case, as service inam waqf lands in question are covered by a Muntakhab issued by the Nazim-e-Atiyath. Gazette publication does not determine the waqfs character, which stems from the Dargah and subsequent Sanad and Muntakhab. ORCs, pattedar passbooks, and title deeds issued in violation of the Inam Abolition Act and the Waqf Act are subject to cancellation, as only the institution is entitled to receive ORCs under Section 4 of the Inam Abolition Act. I i I o Entries must be made in the institution's name' and any changes based on unlawful documents warrant deletion I.earned counsel for petiLioner Sri Sujith 'Jailswal' 5. submits that the Waqf Act, 1954 or the Waqf Act' 1995 does not contain any provision of law which permits issuance of an addendum notihcation in respect of the notified waqf properties as per Sections 4 and 5 of the respective Acts' In the absence of a,ny statutory provision, issuance of impugrred addendum dated O8.O2.2OO7 is without any authority of law and it is a nullity' The impugned addendum was issued connecting the original waqf gazette notification dated 09'02' 1989 ald in the said notification, no attached properties are mentioned in respect of the subject waqf institution and at any rate' the 1954 Act has been repeaied by the 1995 Act which came into force on 0l.0l.1996andissuanceoftheimpugnedaddendumdated O8.O2.2OO7 to the waqf gazette notification d'ated 09'02'1989 is a nullity since the impugned addendum notifrcation was not issued under the Waqf Act, 1995' When once the 1954 Act has been repealed as per the 1995 Act' any addendum notification connecting the original waqf gazette notification published ,.rd.. th" 1954 Act is a nullity as per the law laid down by the Division Bench of this Honourable Court in W'A'No' 1432 of 2016, dated 04.12.2023, hence the irnpugned addendum i:.1. &.;.: '".ri$!;. :.-' 7 notification is a nullity in the eye of law and its invalidity can be raised at any stage including collateral proceedings or execution proceedings. According to the learned Senior Counsel, when the original waqf gazette notilication dated 09.O2.1989 has not specified any attached properties belonging to the said institution or village, the addendum notilication could not have included the subject land in Column Nos. 10 and 1 I of the addendum notifrcation, is not borne out by arty reason, not preceded by proper conduct of survey and without giving any opportunity to the recorded owners like the petitioner and hence it also offends the principles of natural justice. Thus, for absence of reasons and particulars and disclosure of material as to how and on what basis the new village and survey numbers are included in the addendum notification, the same is void for uncertainty and hence liable to be set aside, contends the learned Senior Counsel. According to him, the old Act was repealed and therefore, any addendum issued under tlee old Act is illegal and void. According to the new Act, Section 4 (6), up to

01.11.2013, no second or subsequent survey shall be made until expiry of a period of twent5r (20) years from the date on which the report in relation to the immediately previous survey was submitted. In the present case, the original report was published in 1989, therefore, the second or subsequent survey E cannot be undertaken alter 2OO9. However, the second survey is shown to have been carried out in 2O04, which is contrary to the provisions of the Wakf Act itself.

6. Per contra, the learned Standing Counsel for the Waqf Board Sri Abu Akram contends that the entire Kongara Khurd Village was part of Muntakab of the then Ruler Quli Qutub Shah Abul Hasan Tanesha, hence, all the survey numbers of the village are rightly included in the addendum notiflcation. However, the Learned Stalding Counsel could not answer the contention that whether the addendum notification is referable to aly of the statutory provisions contained in the 1954 Act or the 1995 Act. Further, he has not been able to explain as to how the subject land has been included in the impugned addendum notifrcation.

7. It is settled law that in order to declare a property as waqf property, there should be a'valid survey commissioner report and a gazette publication under Section 5 of either of the Act. From the counter aJhdavit, it is not forthcomiag as to on what basis the impugned addendum notification was issued after more than fifteen years from the date of original waqf gazette notification dated 09.02.1989. It is not the case of the Board that the lands covered by the addendum notification are i I 9 8 part of earlier survey but they were not included in the earlier notification dated 09.O2.19g9, hence the addendum was issued. Since the addendum notification is during the regime of Wakf Act, 1995 and connecting the original wakf gazette notilication dated 09.02.19g9 relatable to the Wakf Act, 1954, as per the authoritative pronouncement of the Division Bench in W.A.No.1432 of 2016, dated 04.12.2023, the publication of the addendum notification expaading the wakf gazette notilication dated O9.O2.19g9 issued under the Wakf Act, 1954, is a nulligr since no gazette publication can be legaly issued under the repealed Act. Further there is force in the contention of the learned Senior Counsel that there is no basis or reason to include the subject property in the addenduml notification as it is not traceable to any statutory provisions under the 1954 or 1995 Act. Further there is no reference of any survey commis"ion.r report in the impug:ned addendum notification. The second suwey which is shown to have been carried out in 2OO4 is not only contradictory to the provisions of the Wa.ld Act but also against the principles of natural justice as no notice or opportunity was given to the recorded owners, resultantly, there is no legalit5r to the impugned addendum notification. l0

9. The contention that there is a provision of Appeal to the Waqf T'ribunal under Section 83 of the Act does not have any force since the present addendum notification is not referable to any provision of the 1954 or the 1995 Act, hence issuance of' addendum notification is without jurisdiction ald therefore, alternative remedy of approaching the Waqf Tribunal is not necessary as per the law Iaid down by the Hontrle Supreme Court in 1998(8) SCC page 1. Hence the contention of learned standing council is rejected.

10. For all the above reasons, the Writ petition is allowed. The impugrred addendum waqf gazette notif,rcation contained ir:L Gazette No.6 dated OB.O2.2OOZ to the extent of the subject property i.e. Acs.3.00 of land in Survey No. 83 of Kongara Khurd Village, Maheshwaram Malda_I, Ranga Reddy District is set aside and quashed. 1 1. ,Consequently, the miscellaneous Applications, if any shall stand closed. NAGESH BHEEMAPAKA, J 186 July 2024 Issue CC today I l I l I l i