The High Court · 2025

Judgment

1. I3i.l:"ilfl,il1r:lil?"y#:!:oard, rep bv its chier Execurive orricer, Haj ...PETITIONER ' ffi ,|nT.,tsf,: J"":?sgil? [iE :''p "PJbP"l a I s ecreta ry, M i no ritv werra re (waqr) ...RESPONDENTS Petition under Articre 226 0f the constitution of rndia praying tnai in tne circumstances stated in the affidavit filed therewith, the High court may be pleased to issue a writ of Mandamus or any other appropriate writ decraring that the action of the 1st respondent in issuing the addendum waqf gazette notification No'S4/RR/2006, dated 08.02-2007 in respect of the waqf property namely "Dargah syed Shah Raju Hussaini and Graveyard outside Gumbed Fateh Danuaza" (S1.No.2151 in waqf Gazette No.6, dated 09.02.19g9), is without jurisdiction, ultra-virus the provisions of the Waqf Act, 1995, arbitrary and violative of Articre 14,21 and 3004 of the constitution of rndia and consequenry set aside the said waqf addendum notification in so far as the rand of the petitioner admeasuring Ac.1 .37 guntas in Sy.No.364, Ac.3.02 guntas in Sy.No.365, Ac.O.19 guntas in Sy.No.372, Ac.0.19 guntas in Sy.llo.373, Ac.0.09 guntas in Sy.No.374. Ac.1 .32guntas in Sy.No.375, Ac.1.1g guntas in Sy.No.380, Ac'1'36 guntas in sy'No.3gl, Ac.2.1,guntas in Sy.No.382 and Ac.1.20 guntas in Sy.No.383 totaling to Ac.1 S-02 guntas of Kongara Khurd (A) village, Maheshwaram Mandar, Ranga Reddy District is concerned and direct the respondents not to interfere in any manner with the rand of the petitioner admeasuring Ac..l .37 guntas in Sy.No.364, Ac.3.02 guntas in Sy.No.365, Ac.0.19 guntas in Sy.No.372, Ac.0.19 guntas in Sy.No.373, Ac.0.09 guntas in Sy.No.374, Ac.'| .32 guntas in Sy.No.375, Ac..l .18 guntas in Sy.No.380, Ac.r.36 guntas in Sy.No.38l, Ac.Z.1O guntas in Sy.No.3g2 and Ac.1.20 guntas in Sy.No.3g3 totaling to Ac.15-02 guntas of Kongara Khurd (A) virage, Maheshwaram Mandar, Ranga 'Reddy District. IA NO: 10F 2024

Petition under section 151 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation and effect of the addendum waqf gazette notification dated 08.02.2007 issued by the 1st respondent in so far as the land of the petitioner admeasuring Ac.1 .31 guntas in Sy.No.364, Ac.3.O2 guntas in Sy.No.365, Ac...19 guntas in Sy.No.372, Ac.0.19 guntas in Sy.No.373, Ac.0.09 guntas in Sy.No.374, A.c.1 .32 guntas in Sy.No.375, Ac.1.18 guntas in Sy.No.380, Ac.1.36 guntas in Sy.No.381, Ac.2.1oguntas in Sy.No.382 and Ac.1.20 guntas in Sy.No.383 totaling to Ac.1 S_02 guntas of Kongara Khurd (A) village, Maheshwaram Mandal, Ranga Reddy District is concerned, punOing Oi.po.r;ot the writ petition. Counsel for the petitioner: M/s. BHARADWAJ ASSOCTATES Counsel for the Respondent No.1: SRI FARHAN AZAM KHAN, SC FORWAQF BOARD Counsel for the Respondent No.2: Gp FOR SOCIAL WELFARE The Court made the following: ORDER .7 THE HONOI'RABLE SRIJUSTICE B. WJAYSENREDDY WRIT PETITION No.36374 OF 2024 ORDER: (ORAL) Leamed counsel for the petitioner submifted 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 Gazette notification dated 08.02.2007 to the extent of subject land i.e., Acs.l-37 guntas in Survey No.364, Acs.3-02 guntas in Survey No.365, Ac.0-19 guntas in Survey No.372, Ac.0-19 guntas in Survey No.373, Ac.0-09 guntas in Survey No.374, Acs.l-32 guntas in Survey No.375, Acs.l-18 guntas in Survey No.380, Acs.l-36 guntas in Survey No.381, Acs.2-10 guntas in Survey No.382 and Acs.l-2O guntas in Survey No.383, totalling to Acs.l5-02 guntas situated at Kongarakurdu (A) Village, Maheshwaram Mandal, Ranga Reddy District, is set aside and quashed. There shall be order as to 2 As a serltLel thereto, miscellaneous applications, if any, pending in the writ petition stand closed. ^331;'ii,lt'J$''S'"#J / to' /frRuE COPY// I?: ":i[:T g,i,3"Jr"+'#d^s ;; 1tv sE'cTtoN oFFlcER ,r The Chief Executive officer' Telangana State Waqf Board ' Haj House' ' t'lr-.Pitiv, HYderabad' w erta re (w.aqf ) D ep a rtme nt' s ecreta ri at' , 3. One CC to M/s' BHARADWAJ ASSOCIATES' Advocate IOPUCI 4. One CC to SRI u +H8"3:;:1fr:"["*i.1+L 6- Two CD CoPies AZAM KHAN' SC FOR WAOF BOARD toPUCl *ELFARE' Hish court for the state of (Along with the copy of order dated 18'07'2024' in W'P'No'7567 ot 20221 'O**O* BSR BS 4 I (t " f , rii.:J:-.(r { La,s s^ HIGH COURT DATED: 0810112025 CC TODAY ORDER WP.No.36374 of 2024 EH 14 14: !) o a. 2 1 JAll 2 02:i * n ALLOWING THE WRIT PETITION, WITHOUT COSTS /0 t1, t I r5 I ,/ IION'BLE SRI JUSTICE NAGESH BHEEMAPAIIA WRIT PETITION No. 7567 0F 2022 ORDER: e 1"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 Memoraldum of oral gift executed by his late father Mohd Khaja Khar, supported by the occupancy rights certificate dated O3.O1.f 998 under the provisons of the Telangana Abolition of Inams Act (for shor, 'the Act,). The 2"d petitioner similarly owns lalrd in Survey No. 264, spanning Acs.9.14 glrntas, in the same village ald district, acquired uia an occupancy rights certificate 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 ald possessors, with no challenges from either the Waqf Board or revenue authorities. While so, at the request of petitioners, their land was converted from agricultural to non-agricultural use, however, when attempted to execute a sale deed, they encountered resistance from the Sub-Registrar,s OIfice due to their property's inclusion in Gazette Notification No.6, dated OA.O2.2OO7 part II Miscellaneous Notification, previously I 2 Notification issued in AP Gazette No.6-A, Hyderabad dated

09.O2- 1989 at Serial No.2151, which was issued under Section 5(2) of old Wakf Act, 1954, issued by ths fna respondent. l'he action of the 2nd respondent in labelling subject land as waqf in the Gazette Notification is deemed illegal, arbitraqr, and unconstitutional, violating natural justice and violation of A.rticies 14, 2l and 30O-A of Constitution of India. It is stated, in several judgments including Writ Petitions No.25O76 of 2OO4 and 33133 of 2OI4, this Court had quashed similar notifications on the basis of the judgment in B. Goutra Reddg v. Gouerntnent of Andhra Prqdeshl, establishing precedence for petitioners' case. Hence the Writ Petition.

2. Ctn 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, suspended the impugned Gazette Notification and the official 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"4 petitioner is concerned uide order dated, ot.02.2024. ' eln zoo2 al ; t: 3

4. In the counter-aJlidavit frled on behalf of t}re 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. I / 88A6 / 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 Hazrath 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 Hazrath Syed Raju Kattal Hussaini. It is asserted by the !',a respondent that the langs in question have historical significance as waqf property, backed by offrcial records, such as Survey Commissioner Report, dated

18.07.2OO4, and confirms that Survey Nos. 2 to 40O of Kongara Khurd Village was granted to Dargah Hzt. Shah Raju Qattat 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, f 961, declared the entire village as inam land, recorded in the revenue records through Jama Bandi in 1965-66. Based on these findings, an Addendum/Errata was 4 issued on O8.O2.2OO7 by the Board notifying the lands as Waqf and incorporating them into Waqf Register. It is stated, D. Hzt. Syed Shah Raju Khattal Hussaini, as; notilied in the A.P. Gazette on 09.02.1989, encompassing Acs.12.O0 as graveyard in Hyderabad city, overlooked. inclusion of service inam land in Kongarakhurd Village. Subs;equently, 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 Nazirn-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 notihcation from 1989, thus allirming its validity. This respondent provides evidence of property's waqf status since time immemorial, supported by documents such as Muntakab No. 1680 issued by the government. possession of the petitioner over the service inam lands, desigrrated as permanent dedication to the Dargah, is deemed iIIegaI and un.lawful, 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 400 is encroached upon by various individuals. The issuance of ORCs, protected Tenancy Certificates, Pattedar passbooks, ald title deeds in favor of certain individua_ls 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 Telangana, through G.O. Ms. No. 15, Minorities Welfare Department, dated

22.09.2O2O, directed Municipal and panchayat Authorities not to grant construction permissions on Waqf lands . : 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 passbociks, and title deeds issued in violation of the Inam Abolition Act and tJle Waqf Act are subject to cancellation, as only the institl.rtion is entitled to receive ORCs under Section 4 of the Inam Abolition Act. 6 Entries must be made in the institution's name, and any changes based on unlawful documents warrant deletion'

5. Learned counsel for petitioner Sri Sujith Jailswal' that the Waqf Act, 1954 or the Waqf Act, 1995 cloes not _submits contain aly provision of law which permits issuance of an addendum notification in respect of the notifred waqf properties as per Sections 4 and 5 of the respective Acts' In the absence of arry starutory provision, issuance of impugned addendum dated O8.O2.2OO7 is without any authority of law ald it is a nullity' The impugrred addendum was issued connecting the original waqf gazette notification dated 09.O2.1989 and in the .said notification, no attached properties are mentioned in respect of the subject vrraqf institution and at any rate, the 1954 Act has been repealed by the 1995 Act which came into force on

01.01. 1996 rrnd issuance of the impugned addendum dated Aa.O2.2OO7 to the waqf gaz,ette notification dated 09.02,1989 is a nullity since the impugned addendum notification 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. gazrtte notification 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 7 notification is a nullity in the eye of law and its invalidit5r can be raised at any stage including collateral proceedings or execution proceedings. According to the learned Senior Counsel, when the original waqf gazette notification dated 09.O2.1989 has not specifred any attached properties belonging to the said instifution or village, the addendum notification could not have included the subject land in Column Nos.1O and 11 of the addendum notification, is not borne out by zrny reason, not preceded by proper conduct of survey ald without giving any opportunity to the recorded owners like ttre 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, cantends the leamed 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 survey 8 cannot be undertaken after 2009. However, the second survey is shown to have been carried out in 2004, 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 Munta-kab of the then Ruler QuIi Qutub Shah Abul Hasan Tanesha, hence, all the survey numbers of the village are rightly included in the addendum notification. However, the Learned Standing Counsel could not answer the contention that whether the addendum notihcation 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 Iand has been included in the

7. lt 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 aJfrdavit, 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 notilication dated O9.02.1989. It is not the case of the Board that th.e lands covered by the addendum notification are 9 ? part of eaflier survey but they were not included in the earlier notification dated 09.02.1989, hence the addendum was issued.

8. Since the addendum notihcation is during the regime of Wakf Act, 1995 and connecting the original wakf . gaz-ette notifrcation dated 09.02.1989 relatable to the Wakf Act, 1954, as per the authoritative pronouncement of the Division Bench in W.A.No.1432 of 2016, dated 04.72.2023, the publication of the addendum notilication expanding the wald gazette notification dated 09.02.1989 issued under the Wakf Act, 1954, is a nullity since no gazette 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 addendr,rm notiflcation as it is not traceable to any 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 Walf Act but also against the principles of natural justice as no notice or opportunit5r was given to the recorded owners, resultantly, there is no legality to the impugned addendum notification. 10 .l The contention that there is a provision of Appeal to 9. the Waqf Tribunal under Section 83 of the Act does not have any force since the present addendum notifrcation 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 rribunal is not necessary as per the law laid down by the Hon'ble Supreme Court in 1998(8) SCC page 1' Hence the contention of learned standing council is rejected'

10. For all the above reasons, the Wnt Petition is addendum waqf gazelte notihcation allowed. The imPugned contained in Gazette No'6 dated 08 'O2 '2OO7 to the ext'ent of the subject Prrlperty 1'e' Acs-3.00 of land ln SurveY No. 83 of Kongara Khurd Village' Maheshwaram Mandal' District is set aside and quashed' ConsequentlY' the miscella.neous APPlications' if Ranga ReddY

11. any shall stand closed' 186 JutY 2024 Issue CC today NAGESH BHEEMAPAKA' J !11