Allowed

Yeluka Lalitha v. State of Telangana and Another

Telangana HC21 Oct 2024WP/21469/2020

Case brief

AI extract

What is this about?

Writ petition challenging Gazette notification declaring land as Wakf. Court allowed petition relying on a previous order, quashing the notification to the extent of the subject land while excluding inter-se disputes.

What did the court decide?

Gazette notification No.6 dated 08.02.2007 set aside and quashed to the extent of the subject land. Miscellaneous petitions closed. No order as to costs.

Yeluka Lalitha Vs State of Telangana and Another — Land Acquisition | Telangana HC (2024)

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[³¹⁸³ ]

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HIGH COURT^{FORTHE STATE OF TELANGANA} AT HYDERABAD (Special Original Jurisdiction)

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MONDAY, THE^{TWENTY FIRST DAY OF OCTOBER} TWO THOUSAND^{AND TWENTY FOUR}

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PRESENT

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THE HONOURABLE^{SRI JUSTICE B.VIJAYSEN REDDY}

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WRIT PETITION^{NO:21469 0F 2020}

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Between:

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Yeluka Lalitha,^{W/o.Sri Y.Shankaraiah, aged.about5-B years' Occ' Housewife'} Fv";:Kilsr;;kuir' in iVi r rrg"' M i^h Js*d rain^{Ma ndal, Rahsa Redd} v^District'

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...PETITIONER

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AND

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State of Telanqana,^{rep. by its Principal Secretary, Minorities Welfare} Department, Sbcretariat,^Hyderabad.

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Telanqana State^{Waqf Boardat Haj House complex, Nampally, Hyderabad,} rep. bV its Chief^{Executiveofficer.}

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A. Srinivas A. Srinivas Srinivas^{Goud, S/o: Late A. Pandu Goud, Aged. A. Pandu Goud, Aged. Pandu Goud, Aged. Aged.about 44 years'}

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A. Srinivas A. Srinivas Srinivas^{Goud, S/o: Late A. Pandu Goud, Aged. A. Pandu Goud, Aged. Pandu Goud, Aged. Aged.} " o"", eJJ;"ii, nlo H.t\o.re-5-851, Lal Darwa2a, Hvderabad'

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A. Venkatsh^{Goud, S/o: Late A. Balaiah,aged..aboutSp Vqa19' Occ: Business'} ' ii7" ff . f.io.-r S-t -ZOi, RalOrrarkhampet, Mangalhat, Hyderabacl'

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A. Suresh^{Goud, S/o: Late A. Balaiah,} ^aged^{abou1.44 years' Occ: Business'} " ii/"' ij.Nb.]brbit gz, Marutninasar, Amberpet, Hvderabad'

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(RR 3 to 5 are impleaded^{as per C'O Dt: 21'10'2024 in l'A' No'1/2021)}

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...RESPONDENTS

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PetitionunderArticle226otlheconstitutionoflndiaprayingthatinthe circumstancesstatedintheaffidavitfiledtherewith'theHighCourtmaybe pleasedtoissueawrit.orderordirectionmoreparticularlyoneinthenatureof WritofMandamusdeclaringtheactionoftherespondentsinissuihgAPGazette notification No.6^{dated. o8to2t2oo7, in respect of land admeasuringAc'6-00 Gts''} under sy.no.B2lAl/1 ,^{situated at Konearakurdu(A) Village' Maheswaram Mandal'} Ranga Reddy^{District, including subject patty land as wakf land' wilhoutissuing} any mandatory^{prior notice topetitioner, as illegal' arbitrary'unjust'} unconstitutional^{and in violationof principles of naturaljustice, and alsocontrary to}

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provisions under the ward Act. 1995, and consequenfly set aside the same, in so far as the claim of the petitioner is concerned over rand admeasuring Ac.6-00 Gts., under sy.no.82lA111 , situated at Kongarakurdu (A) vilage, Maheswaram Mandar, Ranga Reddy District.

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lA NO: 1 OF 2020

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Petition under section 1 s 1 cpc praying that in the circumstances stated in the affidavit flred in support of the petition, the High court may be preased to suspend the AP Gazette notification No.6 dated. o1to2rzoo7, in so far as craim of the petitioner is concerned over the land admeasuring Ac.6-00 Gts., under sy.no.B2lA111 , situated at Kongarakurdu (A) Viilage, Maheswaram tMandar, Ranga Reddy District, pending disposal of the writ petition.

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counsel for the Petitioner: sRr v. vENKATARAMANA, LEARNED sENroR COUNSEL APPEARING FOR SRI MOHD. MAZHAR ALI

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Counsel for the Respondent No.1: Gp FOR SOCIAL WELFARE

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Counsel for the Respondent No.2: SRI FARHAN AZAM KHAN, SC FOR WAKF BOARD

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Counsel for the Respondent Nos.3 to 5: SRI VIJAY B. PAROPALARI

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The Court made the following: ORDER

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THE HONOURABLE SRI JUSTICE B. VIJAYSEN REDDY WRIT PETITION 0.21469 of 2O2O

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ORDER:

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This writ petition is filed challenging notification^{published in} A.P. Gazette Notification No.6 dated O8.O2.2OO7 in respect of land admeasuring Ac.6.00 guntas in Sy.No.82lA1l1, Kongarakurdu^(A) Village, Maheshwaram Mandal, Ranga Reddy District.

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Heard Mr. V. Venkataramana, learned senior^counsel appearing for Mr. Mohd. Mazhar Ali,^{learned counselfor the} petitioner; Mr. Farhan Azam Khan, learned standing counsel for ht Wakf Board and Mr. Vijay B. Paropakari, learned counsel^{for the} respondents No.3 to 5.

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Learned senior counsel for the^petitioner submitted^{that the} subject matter of the writ petition is squarely covered^{by the order} of this Court in WP.No.7567 of 2022 dated^{18.07.2024'The same} is not disputed by the learned standing couniel^{for the WakfBoard.}

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4, Learned counsel for the respondents No. 3 to 5^submitted that there is title dispute between the^{petitionerand the} respondents. No.3 to 5. The^present writ^{petitionis filed by} indulging in suppression of material facts^{and based on bogusand} fabricated documents. The writ^{petitionerand one AkulaRamya,} claiming to the Special^{Power Attorney of the petitioner, filedone}

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suit and five writ^{petitions in respect of the subjectlandThe said} Akula Ramya claims to have obtained^{agreement of sale in relation} to the subject^{propertyfrom the petitioner and that she is in} possession of the subject land' An application^{in IA.No.241 of 2O2O} in O.S.No.91 of 2O20 on the^{file of the X lunior Civil Judge.} Maheshwaram, was filed by^{Akula Ramyaand the same was} I dismissed. O.S.No.91 of^{2O2O was filed as a counter blast to the} suit in O.S.No.2116 of 2019 on^{the file of the VIII Additional Senior} Civil ludge, Ranga Reddy District, filed^{by the respondents No.3 to} 5 against the petitioner herein. The^{pendencyof suits and writ} petitions is not brought to the notice of this Court,^{as such, the writ} petltion is liable to be dismissed for suppression of^facts.

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It is releva nt to^point out that the^{/is herein is between the} petitioner and the respondent-Government/Wakf Board^and Gazette No.6 dated O8.02.2OO7 whereby^{the subject landnotified} as wakf land is challenged in^this writ^{petition. The inter se title} dispute between the^petitioner. her SPA^{(AkulaRamya)and the} respondents No.3 to 5 is not the subject^{matterof this writ petition.}

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In view of the above, the writ^{petition is} allowed^{in terms of} order dated 1A.O7.2024 in WP.No.7567 of^{2022. The impugned} Gazette notification No.6 dated OA.O2.2OO7 to^{the extent} of^the subject land i.e. Ac.6.00^guntas in^{Sy.No.82lA1l1.Konqarakurdu}

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A) Village, Maheshwaram Mandal, Ranga Reddy District, is set aside

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and quashed. It is made clear that the order passed in this writ petition shall not have any bearing on the mfer se civil disputes between the petitioner and the respondents No.3 to 5/third parties.

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The miscellaneous petitions pending, if any, shall stand

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closed. There shall be no order as to costs.

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SD/. P.PADMANABHA^RE Y ASSISTANT^REGIS R

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//TRUE COPY//

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SECTION O^FICER

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To, 1 . The Principal Secretary, Minorities Welfare Department' Secretariat' State of Telanoand. HYderabad.

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2' fi5'iii;iti;iliu"*om""r,^{TetanganaStatewaqf Board at Haj House} Complex,^{NamPallY,HYderabad,'}

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3 &;' 6C i.;'S'ii^{Vitirat(u mar L a in, Ad vocate} [9^{P^u Cl} 4- 5;; 6d^{i6 s1i ruinin nri, rn,n, sc ror w-alr Boi.rd[oPUC} 5 il; dc i" 5ii^{v,iJv e. Paropakari,AdvocateloPUCl} 6: i;; d6.'i"-^{bp'# Sociuiw;iiiii!,iiibn c"irt for the State of relansana,at} Hyderabad [OUT]

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Two CD CoPies

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(Along with the^{Copy of Order dated 18'07'2024ln W'P'No'7565 of 20221}

HIGH COURT

CC TODAY

DATED:2111012024

ORDER

WP.No.21469 of 2020

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ALLOWING THE WRIT PETITION

WITHOUT COSTS

l i l ti l

HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

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WRIT PETITION No. 7567 0F 2022

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ORDER:

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The lst 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 Act). The 2nd petitioner similarly owns land in Survey No. 264, spanning Acs.9.14 guntas, in the same village and district, acquired uia an occupancy rights certificate dated 17.03.1993. They have enjoyed uninterrupted 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.

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While so, at the request of petitioners, their land was converted from agricultural to non-agriculturai use, however, when attempted to execute a sale deed, they encountered resistance from the Sub-Registrar's Ofhce due to their property's inclusion in Gazette, Notification No.6, dated 08.O2 .2OO7 part II Miscellaneous Notification, previously

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Notification issued in Ap Gazette No.6 og.o2.1g8g at serial No.2I51, *rri.r, *." ,l,,.Hyderabad dated 5(2) of otd wakf Act, 1954, issued o, ,r. ,.".."H": section The action of the 2,d responde: rand as waer in rhe Gazette -'""rr!-alronivotm".tiol ts ," deemed "^t^.l"": subjectillegar, arbitrary, ?nd unconsri+r,+j^_ , na'[urar ius'lice and :::?-T :;8 onstitution of India. ;i:":.-.:;JT utt"' judgments including writ Petitions No.25o76 of 2oo4", nd 33133 of20t4, thi s i "^{<\J t't'} rnr court had quashed sim ar notifications on rL- r.the basis of the judgment in B. Goura Reddg u. Goaernm ent of Andhra prad.r rradeshl ' establishing precedence for petitioners ":"^ :,'"uers, case. Hence the Writ petition. , On 17.O2 issuing ntle nisi, this court directed the wrir o.rr,l^o^"-^wtiie along with writ perition No. 18e or 2o22;nr,:: l:-o'.o""t", tng regard to the orders passed by this Court in B. Goutrq case' suspended the impugned Gazette Notification ^r:oono t official respondents were clirected not to interfere with ,n.' : possession of petitioners in respect of the subject iands. .). The Writ petition 1S dismissed AS withdrarvn regards the AS 2,,d petitioner IS o1.o2.2024. concerned uide order dabd

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AIR 2OO2 AP 3I ]

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In the counter-affidavit filed on behaif of the 2nd respondent Waqf Board, it is stated by the Chief Executive Officer that petitioners claim ownership based on their longstanding possession and issuance of Occupancy Rights Certificates (ORCs) vide proceedings No. 1/8886/7997, dated 03.O1.1998 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.

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It is asserted by the 2.'d respondent that the lands in question have historical significance as waqf property, backed by official records, such as Survey Commissioner Report, dated 18.07.2OO4, and confirms 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, 1961, declared the entire village as inam land, recorded in the revenue records through Jama Bandi in 1965-66. Based on these hndings, an Addendum/ Errata was

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issued on 08.O2.2OO7 by the Board notifying the lands as Waqf and incorporating them into Waqf Register.

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It is stated, D. Hzt. Syed Shah Raju Khattal Hussaini, as notilied in the A. p. Gazette on 09 .O2.19g9 , encompassing Acs.12.O0 as graveyard in Hyderabad city, overlooked inclusion of service inam land in Kongarakhurd Village. Subsequently, after scrut inizing documents such as munthakab, rcvenue record, Survey Commissioner,s report, notice from the Spl. Dy. Tahsildar (Inams) under thr: Inam Abolition Act, judgment of Nazim-e-Atiyat and a letter from Tahsildar Ibrahimpatnam dated 26.09.1966, an trrrata/Addendum notihcation was issued. This corrective notification was published in the impugned Gazette continuing the earlier notification from 1989, thus afhrming its validity.

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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, designated as permanent dedication to the Da_rgah, is deemed illegal and unlawful, notwithstanding their physical possession, as servicc inam land remains dedicated to Wakf purposes, thus unchanged in character.

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)

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It is stated, the total^{area of KongaraKhurdViilage,} comprising Survey^{Nos. 2 to 400 is encroachedupon by various} individuals. The issuance^{ofORCs, ProtectedTenancy} Certificates, Pattedar^{Passbooks,and title deeds in favor of} i:ertain individuals by^{the revenue authorities,despite knowing} the land's service^{inam status,is illegai' Appeals against these} actions are^{pending beforethe Tribunal.The lands, being waqf} as Mashruthul^{Khidmath(Service Inam lands),were} appropriately^{includedin prohibitory list under Section 22-A of} the Registration Act,^{1908 The Governmentof Telangana'} through G.O. Ms.^{No. 15, MinoritiesWelfareDepartment, dated} 22.Og.2O2O, directed^{Municipal and PanchayatAuthorities not} to grant construction^{permissionson Waqf lands'}

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According to this^{respondent, the previous writ} petitions cited are^{irrelevant to the present case, as service inam} waqf lands in^{question are coveredby -a Muntakhab issued by} the Nazim-e-Atiyath'^{Gazette publicationdoes not determinethe} waqfs character,^{whichstems from the Dargahand subsequent} Sanad and^{Muntakhab.ORCs,pattedarpassbooks, and title} deeds issired in^{violationof 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'}

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Entries must be made in the institution.s name, ztnd any changes based on unlawful documcnts warrant delction 5. Lcarned counsel for petitioner Sri Sujith .Iailswal, submits that the Waqf Act, 1954 or the Waqf Act, 1995 cloes not contain any provisjon of law which permits issuance of an addendum notification in respect of the notihed waqf properties as per Sections 4 and 5 of the respective Acts. In the absence of any statutory provision, issuance of impugned addendum dated O8.O2.2OO7 is without any authority of law and it is a nullity. The impugned acldendum was issued connecting the original waqf gazette notification dated 09.02.19g9 and in the said notiflcation, no attached properties are mentioned in respect of the subject^q,aqf 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. t9g9 is a nullity since the impugned addendum notification q,.as 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 under the 1954 Act is a nullity as per the law laid down by the Division Bench of this Honourabie Court in W.A.No.1432 of 2016, dated 04. 12.2023, hence the impugnecl addendum

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notification is a nullity in the eye of law and its invalidity can be raiseC at any stage including collateral proceedings or execution proceedings. According to the learned Senior Counsel, when the original waqf gazette notification dated 09.02.1989 has not specified any attached properties belonging to the said institution or village, the addendum notification could not have included the subject land in Column Nos.lo and 1 1 of the addendum notification, is not borne out by any reason, not preceded by proper conduct of survey ald without giving any opportunity to the recorded owners like the^petitioner and hence it also offends the principles of natural^justice. Thus,^for absence ofreasons and particulars and disclosure of material as to how and on what basis the new village and survey numbers are included in the addendum notihcation, the same is^{void for} uncertainty and hence liable to be set^{aside, contendsthe} 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,^{Section4 (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^{previoussurvey} was submitted. In the present case, the original^{report was} published in 1989, therefore, the second or subsequent^survey

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cannot be undertaken after 2009. However, the second survey is shown to herve been carried out in 2004, whrch is contrarv to the provisions of the Wakf Act itself.

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Per contra, the learned Standing Counsel for the Waqf Board Sri Abu Akram contends that the entire Kongara .^{KhurdVillagewas part of Muntakabof the then Ruler euli} Qutub Shah Abul Hasan Tanesha, hence, all the survey numbers of the village are rightly included in the adrlendum notification. However, the Learned Standing Counsel could not answer the contention that whether the addendum not;fication is referable to any of the statutory provisions contarnecl 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 notification.

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It is settled law that in order to declare a property as waqf property, there should be a vaiid survey commissioner report and a gazette publication under Section 5 of either: of the Acl . From the counter affidavit. it is not lorthcoming as to on what basis the impugned addendum notification was issued after more than hfteen years from the date of original waqf gazette notification dated 09.O2.19g9. It is not the case of the Board that the lands covered by the addendum notilication are

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part of earlier survey but they were not included in the earlier notification dated O9.02.1989, hence the addendum was issued. 8. Since the addendum notification is during the regime of Wakf Act, I 99 5 and connecting the original wakf gazette notihcation dated O9.02.1989 relatable to the Wakf Act, 1954, as per the authoritative pronouncement of the Division Bench in W.A.No.1432 of 2016, dated 04.12.2023, the publication of the addendum notification expanding the wakf 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 addendum notification as it is not traceable to any statutory provisions under the 1954 or 1995 Act. Further there is no reference of aly survey commissioner report in the impugned addendum notification. The second suwey which is shown to have been carried out in 2004 is not only contradictory to the^{provisions of} the Wakf Act but also against the^principles of natural^{justice as} no notice or opportunity was given to the recorded owners, resultantly, there is no legality to the impugned addendum notification.

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g. The contention^{that there is a provisionof Appeal to} the Waqf^{Tribunalunder Section 83 of the Act does not have} any force sincc^{the present addendum notification isnot} referable to^{any provisionof the 1954 or the 1995 Act' hence} issuanceofaddendumnotiflcationiswithoutjurisdictiorrand therefore,^{alternative remedy of approaching the Waql Tribunal} is not necessary^as Per^{the iaw laiddownbY the Hon'ble} Hence the^{contenl.ronof} Supreme Court^{in 1998(8) SCC} Page^I learned standing^{council is rejectcd'}

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For all the^{above reasons' the Writ Petitionls} aliowed. The^{impugnedaddendum waqf gazette notification} contained in^{Gazette No.6 dated08 'O2'2OO7to the extent of the} subject property^{i.e. Acs'3'OOof land in Survey No 83 of} Kongara Khurd^{Village, Maheshwaram Mandal' Ranga Reddy} District is^{set aside and quashed'}

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1 I . Consequently,^{the miscellaneousApplications} '^if any shall stand^closed.

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NAGESH BHEEMAPAKA'^J

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18'h July 2024

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ksLd

Yeluka Lalitha v. State of Telangana and Another

Case brief

What is this about?

What did the court decide?

Yeluka Lalitha v. State of Telangana and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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