[ff ft 5?B'*" v. violative of Articre 14

THE HONOURABLE SRIJUSTICE B. VIJAYSEN REDDY WRITPETTTION No.36377 OF Z0Z4 ORDER: (ORAL) Learned 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.A7'2024'

2. Recording the aforesaid submission, the writ petition is allowed in terrns 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 Gazette notification dated 08'02'2007 to the extent of subject land (at serial Nos.53 and 54) i'e', Acs'10-23 guntas in Survey No.94 and Acs.10-25 guntas in Survey No'95 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/-T. TIRUMALAD ASSISTAN REG To, ,' I:",$li:t,.,'13,"$x3 ' I?3":iil:"i:3,i3T'"+3d"Sl: 3. One CC to M/s BHARADWAJ ASSOCI 4. One CC to SRI FARHAN AZAM KHAN' /fTRUE COPY// S TION OFFICER *""' Telangana State Waqf Board' Haj House' rity WeKare (Waqfl Department' Secretariat' ATES, Advocate IOPUCI SC FORWAQF BOARDIOPUCI u IY3"3*'":? r?t535 i"?r"ft

6. Two CD Copies wELFARE' Hish court ror the state or / (Along with the copy of order dated 18.07.2024, in W.p.No.7367 of 2022) BSR BS v , -l '! l-:a: r-1 i,-u .) \ {t t&-v' HIGH COURT DATED: 0810112025 \ \ ORDER WP.No.36377 ot 2024 I I CC TODAY oR Tl-'E S7 ,irii\ r^) ( .) o 2 1 ,'Aii 2025 ,1 r9 :t ..( C.: ALLOWING THE WRIT PETITION, WITHOUT COSTS /h u /r /1 / HON'BLE SRI JUSTICE NAGESH BHEEMAPAI(A WRIT PETITION No. 75'67 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 Khal, supported by the occupancy rights certificate dated

03.01.1998 under the provisons of the Telangana Abolition of Inams Act (for shor, 'the Act'). The 2"d petitioner similarly owns land in Suwey No. 264, spanning Acs.9.14 guntas, in the same village and district, acquired uia an occupalcy rights certilicate dated 17.03.1993. They have enjoyed unintern:pted possession of the land, as did their ancestors before them. It is stated, revenue records have consistently reflected petitioners ds pattadars and possessors, with no challenges from either the Waqf Board or revenue authorities. While so, at the request of petitioners, their lard was converted from agricultural to non-agricultural use, however, when attempted to execute a sale deed, they errcountered resistance from the Sub-Registrar's OfEce due to their property's inclusion in Gazette Notifrcation No.6, dated Oa.O2.2OOT part II Miscellaneous Notifrcation, previously 2 Notification issued in Ap Gs2s116 No.6_A, Hyderabad dated 09.02.1989 at Serial No.2151, which was issued under Section 5(2) of old Wakf Act, 1954, issued by the 2nd respondent. he action of the 2"a respondent in labeiling subject land as waqf in the Gazette Notifrcation is deemed illegal, arbitrary, and unconstitutional, violating natural justice and violation of Articles 14, 2l and 300_A of Constitution of India. It is stated, in several judgments including Writ petitions No.25O76 of 2OO4 and 33133 of 2074, this Court had quashed similar notifications on the basis of the judgment in .B. Goutra Reddg a. Goverttment of And.hrq prq.d.esht, establishing precedence for petitioners, case. Hence the Writ petition. 2. On I7.O2.2O22, while issuing rule nisi, this Court directed the Writ petition to be posted along with Writ petition No. 189 of 2O22; having regard to the orders passed by this Court in B. Goutrq Reddg's case, suspended the impugrred Gazette Notifir:ation and the oIficial respondents were directed not to interfere with the possession of petitioners in respect of the subject larLds. Writ Petition is dismissed as withdrawn AS petitioner is concerned urde order dated

3. The regards the 12nd

01.o2.2024. 'AIR 2oo2 et 3t3 -t

4. In the counter-alndavit filed on behalf of the 2nd 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. 1/8886/1997, dated

03.01.1998 under the Abolition of Inams Act, 1955. The property in dispute including Survey Nos. 83 and 264 belongs to Dargah Hazratlr 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 Hazratlr Syed Raju Kattal Hussaini. It is asserted by the lna respondent that the lan{s in question have historical significance as waqf proper[z, backed by offrcial records, such as Survey Commissioner Report, dated

18.07.2OO4, and confirms that Survey Nos. 2 to 4OO 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, 1961, declared the entire village as inam land, recorded in the revenue records through Jama Bandi in 1965-66. Based on these frndings, al Addendum / Errata was 4 issued on O8.O2.2OOZ by the Board notigring the lands as Waqf ald incorporating them into Waqf Register. It is stated, D. Hzt. Syed Shah Raju Khattal Hussaini, as notified in the A.p. Gazette on 09.02.19g9, encompassing Acs.12.OO as graveyard in Hyderabad city, overlooked. ;nclusion 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 notification was published in the impugned Gazette continuing the earlier notification from 1989, thus allirming its validity. This respondent provides evidence of propergr,s waqf status since time immemorial, supported by documents such as Muntakab No. 16g0 issued by the government. possession of the petitioner over the service inam lands, designated as permanent dedication to the Dargat, is deemed illegal and unlawful, notwithstanding their physical possession, as service 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 40O is encroached upon by various individuals. The issuance of ORCs, Protected Tenancy 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 Iist under Section 22-A of the Registration Act, 1908. The Government of Telangana, through G.O. Ms. No. 15, Minorities Welfare Department, dated

22.O9.2O2O, directed Municipal and Panchayat Authorities not to grant construction permissions on Waqf lalds : 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. 6 Entries murit be made in the institution's name' and any changes based on unlawful documents warrant deletion ' Learned counsel for petitioner 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 notiflcation in respect of the notified waqf properties as per Sections 4 and 5 of the respective Acts' In tfre absence of any statutory provision, issuance of impug:ned 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 and 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 repealed by the 1995 Act which came into force on 01.01.1996 and issuance of the impugned addendum dated 08.O2.2OO7 to the waqf gazette notification dated 09'02'1989 is a nullity since the impugned addendum notification was not issued undr:r 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 notifrcation published under the 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 impugned addendum 1 7 notilication is a nullit5r 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 notifrcation dated 09.O2.1989 has not specifred any attached properties belonging to the said institution or village, the addendum notification could not have included the subject land in Column Nos. 10 and 1 1 of the addendum notification, is not borne out by any reason, not preceded by proper conduct of survey and without giving any opportunity to the recorded owners like tl.e 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 numbe;s 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 the 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 twenty (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 suwey 8 cannot be undertaken after 20O9. However, the second survey is shown to have been carried out in 2OO4, 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 Viliag,e was part of Muntakab of the then Ruler euli Qutub Shah Abul Hasan Tanesha, hence, all the survey numbers of the village are rightly included in the addendum notification. However, the Learned Staading Counsel could not answer the contention that whether the addendum notification is referable to any 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 incruded in the impugned addendum notihcation. 7. It is settled law that in order to declare a properly as waqf property, there should be a valid survey corunissioner report and a gazette publication under Section 5 of either of the Act. From the counter affidavit, it is not forthcoming 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 09.02.19g9. It is not the case of the Board that the lands covered by the addendum notification are I 9 a= part of earlier survey but they were not included in the earlier notiflcation dated 09.02.1989, hence the addendum was issued. 8. Since the addendum notification is during the regime of Wakf Act, 1995 and connecting the original wakf gazette notification dated O9.02.19g9 relatable to the Wakf Act, 1954, as per the authoritative pronouncement of the Division Bench in W.A.No.t432 of 2016, dated 04.12.2023, the publication of the addendum notilication expanding the wakf gazette notification dated O9.02. l9g9 issued under the Wald Act, 1954, is a nulligz since no Eazette publication can be legally 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 addendum notification as it is not traceable to aIIy statutory provisions under the 1954 or 1995 Act. Further there is no reference of any survey commissioner report in the impugned addendum notification. The second survey which is shown to have been carried out in 2OO4 is not only contradictory to the provisions of the Wald Act but also against the principles of natuial justice as no notice or opportunity was given to the recorded owners, resultantly, there is no legality to the impugned addendum noffication. 10

9. The contention that there is a provision of Appeal to the Waqf Tribuna-l 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 and therefore, alternative remedy of approaching the Waqf Tribunal is not necessary as per the law laid down by the Honble Supreme Court in 1998(8) SCC page l. Hence the contention of learned standing council is rejected.

10. For all the above reasons, the Writ petition is allowed. The impugned addendum waqf gazette notification contained in Gazette No.6 dated 08.O2.2OOZ to the extent of the subject property i.e. Acs.3.OO of land in Survey No. g3 of Kongara Khurd Village, Maheshwaram Mandal, Rariga Rejdy District is set aside and quashed. 1 1. Clonsequently, the misceltaneous Applications, if arly shall stand closed. NAGESH BHEEMAPAI(A, J 186 July 2024 Issue CC today