Allowed

Smt. Abbagani Kanakalatha v. The State of Telangana

Telangana HC1 Oct 2024WP/24305/2019

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a 1989 Gazette notification declaring land as Waqf property. The court held that the notification violated natural justice as the petitioners were not provided adequate notice or an opportunity of hearing during the survey process mandated under the Waqf Act, thus setting aside the notification.

What did the court decide?

The impugned Gazette Notification No. 7A dated 16.02.1989 declaring the land as Waqf property was set aside. No order as to costs.

Smt. Abbagani Kanakalatha Vs The… — Constitutional and Fundamental Rights | Telangana HC (2024)

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[³¹⁸³ ]

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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TUESDAY, THE 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: 24305 OF 2019

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Between:

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Smt. Abbagani Kanakalatha, Wo: Sri Abbagani Vidya Sagar, Aged about 54 years, Occ. Business, Rl/o Plot No.10, Parkview Enclave, Bowenpally, Secunderabad

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Polam Vidya Sagar, S/o: Sri Late Polam Madan Mohan, Aged about 51 years, Occ. Business R/o Plot No.32,.Parkview Enclave, Bowenpally, Secunderabad Rep through his GPA holder Smt. Abbagani Kanakalatha, Wo: Sri Abbagani Vidya Sagar, Aged about 54 years, Occ. Business, R/o Plot No.10, Parkview Enclave, Bowenpally, Secunderabad

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...PETITIONERS

AND

1 The State of Telangana, Rep by its Principal Secretary Minority Welfare Department, Secretariat, Hyderabad

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2 Tetangana State Waqf Board, Rep by its Chief Executive Officer 1st Floor Razzak Manzil, H yd erabad

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Mohd lsmail Shah Quadri S/o. Late lvlohd Osman Shah Quadri, Aged about 65 years Occ: President, IVanaging Committee tvlasjid D.No. 3 3 64, Pet Basheerabad, Qutballapur, tr/edchal Road, tVedchal Malkajgiri District, Telangana

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R3 is impleaded as per C.O. dt. 2010112022 in l.A.No. 112020.

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...RESPONDENTS

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Petition under Article 226 of the Constitution of lndia piaying that in the circumstances stated in the affidavit filed ther th, the High Court may be pleased to issue any writ, order or direction more p rticularly one in the nature of WRIT OF MANDAMUS declaring the action of the espondent No.2 issuing the Gazette No.7A dated 16-02- 1989 S1.No.4379 co ring extent of 5 Guntas in Sy.No.39 situated at Petbasheerabad, Quthbullapur Mandal, over the lands of the Petitioners without issuing any notice, following due process of Law and

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without having any relevant documents is illegal, arbitrary and^violation of Articles 14, 19, 21 and 300-4 of Constitution of lndia and^{arso againstthe} principles of natural justice and consequently set aside the Gazette No.7A dated 16-02-1989 issued by the Respondent No.2, in the interest of^justice.

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lA NO: 1 OF 2019

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Petition undr:r Section 151 CPC^praying that in the circumstances stated in the affidavit filec in support of the^petition, the High Court may be^pleased to suspend the Gazette No.7A dated^'16-02-1989 issued by the Respondent No.2 in respect of land of^1:he Petitioners in Sy.No.39 to an extent of 5 Guntas, situated at Petbasheerabad, Quthbullapur Mandal, pending disposal of the Writ Petition.

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Counsel for the Petitioners: SRI KATIKA RAVINDER REDDY

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Counsel for the Respondent No.'l: GP FOR MINORITY AND WELFARE Counsel for the Respondent No.2: SRI FHARAN AZAM KHAN, SC FOR TSWB Counsel for the Respondent No.3: SRI MIRZA NISAR AHMED BAIG NIZAMI The Court made the following: ORDER

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HONOURABLE SRIIUSTICE B. VIJAYSEN REDDY

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WRIT PETITION No.24305 OF 2019

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ORDER: (oRAL)

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The writ petition is filed by the petitioners challenging the Gazette Notification No.7A dated 76.02.1989 in respect of the land admeasuring Ac.0-05 guntas in Survey No.39, shown at Sl. No.4379, situated at Petbasheerabad Village, Quthbullapur Mandal, Ranga Reddy District, as being illegal, arbitrary and unconstitutional and consequently set aside the same.

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It is submibted that Mr. Madan Mohary the father of the petitioners, purchased land admeasuring Ac.1-14 guntas in Survey No.3Z land admeasuring Ac.1.-"12 guntas in Survey No.38 and land admeasuring Ac.3-07 guntas in Survey No.39, totally admeasuring Acs.5-33 guntas, situated at Petbasheerabad Village, Quthbullapur Mandal" Ranga Reddy District under registered sale deed bearing document No.3135 of 1964 dated 02.1L.1964 from Ms. M. Shanta Bai W/o Mr. M. Venkateshwar Rao and her children. Since the date of purchase, Mr. Madan Mohan was in possession and enjoyment of the above said land. Mr. Madan Mohan was issued pattadar pass book aide patta No.125 and his name was mutated in the revenue records

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and in pahanies ln respect of the above said^land. It is submitted that Mr. Madan^{Mohan died on 24.12.207?- intestate} and the petitiorrers instituted a declaration^{suit in O.S. No.493 of 201'4} for declaring themselves as legal^{heirs of Mr. Madan Mohan} The trial Court grirnted legal heir^{certificate to the petitionerc aide} judgment datect 07.11.2015. From then, the above said^landdevolved upon the petiti,cners and their^{mother by name Ms. Shantha. Later,} *re said land vras partitioned through^{registeredpartition deed aide} document No.11674 of 2019 dated29.04.2019^{whereinthe subjectland} fell to the share of the petitioners.^{Since then, the pefitionershad} been enjoying absolute ownership and^{possession over the subject} land. It is subrri tted that the subject land^{was covered by compound} wall; there are houses and sheds constructed^{in the subject-land and} it was assessed by the Gram Panchayat^{with H. No.4-4/1/NR} The petitionet; are paying Property tax; bore well^was dug^and electricity connections have been established^{in the subject iand}

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It is submitted that even prior to the^{purchaseoI the land} Acs.5-33 guntas by Mr. Madan Mohan, the name of the predecessor in title by name Mr. Ven-kateshwar Rao @ Venkat Rao was recorded

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in the revenue records as owner of the subject land much prior to 1943 including Sethwar and Sessala Pahani. Some persons by name Mr. Ellaiah and Mr. Ettaiah set up a false claim as protected tenants over the land of the petitioners. Though the original Protected Tenant (PT) surrendered their tenancy rights in favour of the previous owner by name Mr. Venkat Rao, the surrender proceedings were challenged by the alleged legal heirs of the PT which culminated in the order of the Joint Collector aide C.R.P. No.3056 of 2005 and the claim of tenancy rights was rejected. Thereafter, S.L.P. (Civil) C.C. No.11264 of 2007 was filed by the legal heirs of the PT which was dismissed by order of this Court (erstwhile High Court of Andhra Pradesh) dated 26.71.2007. It is submitted that in 1971, the Government acquired the land admeasuring Ac.0-05 guntas in Survey No.39 from Mr. Madan Mohan to iay water pipeline and road, and compensation was paid to him. Thus, the land in Survey No.39 was reduced to Acs.3-02 guntas from Acs.3-07 guntas. It is submitted that false claim was made by the persons^{whowere on} enimical terms with the petitionersⁱⁿ respect^{of the subject} ProPerty admeasuring Ac.0-05 guntas in Surwey No.39^{whichwasshown as} Muslim graveyard; on enquiry by the petitioners, it was found that

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the impugned Gazette Notification No.7A^{dated 16.02,1989was} issued showinl; that the land belongs to^{respondentNo.2 - Waqf} Board and it was noti{ied as Muslim Graveyard.^{It is stated thatthe} petitioners submitted an application under^{the Right to Information} Act, 2005 to respondent No.2 to furnish copies of^{the Waqf deed with} details of the p,31s6n who donated the land to the^{Waqf Board or any} other institutic,n and also copies of notice if any^{issued to the} petihioners, aLrng with survey and commission report.^But, respondent No 2 did not furnish any documents.

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In the cc,unter affidavit filed by respondent No.2, it is stated that as per^.:he impugned Gazette NotiJication No. ZA ciated 16.02.1989, the land in Survey Nos.42 and 39, situatr:d at Pet Basheerabad Village shown at S1. Nos.437Z 4378 and 4379 are AS notified as Waqf properties and the Waqf Board is notified Muthawalli o1. the Waqf institution i.e. Mosque, Dargah and Graveyard. Tre details of the Waqf instifutions with area are as under:

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Mosque with graves in Survey No.42 with area 6x6 square yards.

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Dargah l\rea with the area 10xL0 square yards.

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Graveyard in Survey No.39 with area Ac.0-05 guntas.

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It is submitted that the land admeasuring Ac.0-10 guntas in

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Survey No.42 is attached to Mosque and the land admeasuring Ac.0-05 guntas in Survey No.39 is covered by graveyard. That in 1960s, the then Government of Andhra Pradesh appointed a Comrnissioner of Waqfs for survey and demaication of the Waqf properties in erstwhile state of Andhra Pradesh as provided under Section 4 of the Waqf Act, 1995 (for short 'Acf). Accordingly, the Commissioner of Waq{s, through his survey team and by issuing notice through tom-tom beat in rural areas, conducted survey and ' demarcation of all the Waqf properties by preparing survey forms as prescribed in Survey of Waqf Properties. As verified from the revenue records for Survey Nos.42 and 39 of Pet Basheerabad, the Commissioner of Survey prepared two separate survey forms which bears signature of the then Revenue Inspector, Dundigal Circle (as the Pet Basheerabad Village was included in the revenue circle of Dundigal at that time) in token of notice issued i.e. by way of tomtom beat which was the most effective source of announcement to the local public. The survey conducted by the Comrnissioner of Waqfs in respect of the land in Survey Nos.39 and 42 ol Pet Basheerabad

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Village was also to the knowledge of the^{generalpublic and the said} tom-tom beat ra,as got done through the^{village servants, village} patwaris, Villa;3e Revenue Officers (VROs)^{and RevenueInspectors} etc., as such, the petitioner cannot say that no notice^{was issued and} not due processi of law is followed

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It is subrnitted by respondent No.2 that the land admeasuring Acs.16-34 guntas in Survey No.42 was recorded as Patta^land in^the name of Mr. Raheem Bakhsh Khan. After his demise, succtrssion was granted in the name of Mr. Fateh Mohammed Khan. After police action, Mr. Raheem Bakhsh Khan and Mr. Fateh Mohammed Khan left to Pakistan and the said land was allotted to Mr. Manchalmal Raghumal Sidtriaun (Sindhian) the evacuees. They sold the land to one Mr. Sita Rtrmaiah R/o Secunderabad. As per survey form at Sl No.194, the Dargah is existing in Survey No.42 to an extent of 10x10 yards. The s;ketch of Dargah was also prepared showing the boundaries averilable with the survey forms. As per the survey form at S1. No. 195, it pertains to graveyard in Suwey No.39, totally admeasuring .a,cs.3-07 guntas of Pet Basheerabad Village. The graves were existing as on that date on an extent of 3x4 square yards which

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is also shown in the sketch of Survey No.39. The contents of the survey forms were published in 1989 in the Gazette Notification No.7A dated L6.02.1989 whereas the exercise of survey and demarcation of ali the Waqf properties by making tom-tom beat announcement for the local public was taken up in early 1960s itself. The said gazeLte notification has become final as provided under Section 6 of the Act

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It is submitted that on receipt of the in{ormation about the construction of compound wall by the petitioner in the graveyard admeasuring Ac.0-05 guntas in Survey No.39, respondent No.2 addressed letter dated 19.09.20'19 to the Tahasildar, Quthbullapur Mandal to depute Mandal Surveyor for conducting suruey. Accordingly, the Tahasildar, Quthbullapur Mandal deputed Mandal Surveyor to accompany the Waqf Board Surveyor and Inspector Auditor of Waqfs for joint survey and the^joint survey was conducted on 21,.09.2019 and the technical staff of respondent No.2 submitted the report dated 09.10.2019. As per local enquiry, the local people inJormed that there were visible graves and after levelling the graves and constructing compound wall, the graves are not visible. On the

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said iand admeasuring Ac.0-05 guntas of^{graveyard, a watchman} room is existinlS now as on the area of 33 square yards.^{Thr: technical} staff of respondent No.2 was directed by office memo^dated 13.03.2020 to hrke over the possession of the graveyard^{in Survey} No.39 but they rvere furformed that status quo order^{dated 16.11..2019} was passed by this Court in the present writ petition (W.P. No.24305 of 201,9) against the Waqf Board. It is submitted that the^revenue records were lrot properly maintained by the revenue authorities It was the primary duty of the revenue authorities to verify the Gazette notification and make necessary entries of Waqf lands situated in the..r respective jurisdiction. It is further submitted that protected tena irr:y is not applicable on the Waqf land as per the Section 102 of the Andhra Pradesh (TS) Tenancy and Agricultural Lalds Act, 195(). Moreover, respondent No.2 is not a party before the Mandal Revenue Officer, Quthbullapur Mandal who passed order dated 07.08.2002 in case No.A/6955/2000 as well before the Joint Collector, Ranga Reddy Diskict in File No.F2/65U/2002 in C.R.P No.3056 of 2001i and in S.L.P. (Civil) C.C. No.11264 of 2007

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Learned counsel for the petitioner submitted that sirnilar

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issued fell for consideration before the Division Bench of this Court in W.P. No.20875 of 2009 and this matter is squarely covered by the said judgment. The Division Bench made the following observations:

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"lt is pertinent to note thnt in the counter ffidaztit fled by the Chief Execatioe Olfcer of tfu Waqf Board, except stahng that the lands purchased by the petitioners fall under the limits of uad property under Dargah Hazarath Syed Yaseen Shah Saheeb Rh situated nt lskilla Village, Ramanapet, no material is placed on record. The Gazette Notifution uas published under Section 5 of tlw Act, 1954 in the month of February, 1990 and the same can be challenged uithin one year from the date of its publication. No naerment is .forthcoming in the counter affidaoit as to the dates or^pa rticulars uith resard to tht notices issued to the^petitioners oendors before notification as required uruler the Act, 7954. lt is also pertinent to note thnt no record zohatsoeoer has been placed before this C-ourt to ariae at^a conclusiory'fnding that tfu said extents of lands in uaious sut'oey numbers were waqf property. Neither a copy of register of the uaqfs^(as required to be mnintained under Section 37 of the Act, 1954) has been placed before this Court nor a mpy of^the suratey report of the authoities^(as required under^{Section 4} of the Act, 7954) hns been placed."

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Learned counsel for the pedrioner relied on the following

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decisions, which are discussed as under:

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i) Comrnon order dated 11,.02.2021 passed by this Court in

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W.P. No.5938 of 2006 and batch wherein itwas held as under:

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"A pertrsal of the above portion reveals that the Joint collector ltas suo moto taken up the issue and while setting aside th,: orders of the RDO has granted ORC in favoul of the Waclf Board, solely based on the Gazette Notification dated 09.02.1989. Neither the material on record nor the counters filed before this Court reveal t!4t eflhqlhe&cal representatives of the Inamdars or the Dersons, in whose favour the RDO has^gr anted ORCs. were^put on notice rror glven al1 opportunitv of hearing with regard to the szo rzolo taking up of the case or that reiiance was beins^placed on the Ciazette Notification dated 09.02.1989 while passinq the ord,:r dated 25.02.2006. This Court as weil as the Hon'b1e Supreme Court in catena of cases have held that the principles of natural iustice are inviolable and fundam,:ntal to the rights of the parties to be heard before any ord,:rs are passed and the Courts under Arncle 226 of the Corstitution of India can exercise^judicial power to revien' the decisions made by the subordinatesf quasi judicial ruthorities to see whether the principies of natural justice are violated or not and whenever warranted the Court vsill step-in to correct the same. The power of judicial .review has been held to form the basic structurer of the Constitution and the said power cannot be controlled or excluded by any provision of Statute or Rules made thereunrier. Therefore, the contention of the learned StandinlS Counsels that the oniy remedy available to the

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petitioners is to approach the Waqf Tribunal for setting aside the Waqf Notificatiory if they are aggrieved by the same, cannot be countenanced and the same has to be rejected. The Court while exercising power under Article 226 of tl;.e Constitution of India is not denuded of the power to deal with the orders of the Joint Collector to see whether the orders that are passed are in accordance with the procedure established by law or whether there was any violation of the principles of natural justice. Even though the learned Standing Counsel for the Waqf Board has relied on the judgment of the Hon'ble Supreme Court in Whirlpool Corporation (supra), but, as a matter of fact, in the said decision, the Hon'ble Supreme Court has held as under:

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"Under Article²²⁶ of^tl,:te Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ peLition. But the High Court has irnposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been coruistent$ held by this Court not to operate as a bar in at least three contingencies, namelp where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged."

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Th rs, mere existence of an alternative^{remedy rvill} not by itself take away the powers of the High^Courtunder Article 226 of the Constitution of India to^{exercise its} power to review the decision made by^thequasi iudit:ial authority.

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M<rreover, in State Bank of India^{zts. M.S. Basi€t} Ors.1, the Hon'ble Supreme Court has held that the order^is liable to be set aside if no opportunity of hearing^is affordec. to the parties who are adversely alfected.

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Further, in Maiamma Roy as. Indian Bank & Ors.z, the Hon'ble Supreme Court has held that even if^an alternative remedy is available, if violation of^the principl,:s of natural iustice is alleged, the writ petition^is maintairrable and the High Court can interfere.

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Thelefore, the contention of the learned Standing Counsel that it is only the Waqf Tribunal that can go into the vali<lity or otherwise of the Gazette Notification cannot be countenanced and the same is rejected.^Tl-re impugned order p:issed by the Joint Collector setting^asicle the order of the RDO granting ORCs without putting the parties on notice and without affording them an opportunity of hearing, violates the well recognized principes of natrrral justice i.e. audi alternm partem and the same cannot be countenanced and is liable to be set aside on this^sole ground.

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As seen from the record, the only material before the Joint^{(lollector was the Waqf Notification,dated}

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1 (2004) 11 SCC 347

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, (2009) 16 SCC 187

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09.02.1989, and admittedly the Waqf Board was not a party to the said proceedings nor there was any other material to contend that the subject lands are Waqf lands. In view of the fact that the notification dated 09.02.1989 itself has been held to be invalid and unsustainable and is set aside by this Court in the second batch of writ petitiors, the order of the Joint Collector granting ORC in favour of the Waqf Board is also liable to be set aside and the same is accordingly set aside."

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i0 Judgment^{passed by this Court (erstwhileAndhra Pradesh)in}

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B. Gowra Reddy (died) and others v. Govt. of A.P., Revenue Department, Hyderabad and others3, wherein it was held as under

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"31. If this is construed as the report of the Survey Commissioner, then the purpose of incorporation of Section 4 of the Act is frustrated. It is only a form prescribed for registering a wakf. But what is required to be done by the Survey Commissioner is not to enter the wakf as such and he is bound to enquire whether the property is a wakf property or not. He is also empowered to conduct the enquiry as was observed by the Supreme Court in the decisions referred to above. Mere filling of columns would not amount to report of the Survey Commissioner so as to bind the petitioners, Moreover, it is not in dispute that no notice was ever given to the occupants, who were recorded as such in the revenue

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3 2002 (3) ALT 439

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register. Admittedly, the report was^o11967 by^whichtime the peti:ioners were not the purchasers. They^cameinto picture at a later point of time. But even then^{the enquiry} ought to^proiect as to the notice having been given to^the persons Even accordino to the reports submitted bv the Deputv Tahsildar and also the remarks^made bv^the Survet, Commissioner one lakshmaiah was in actual cultivatiory but accordins to the Deputy Commissioner Laxmaiah was in illegal occupation. Be that as it ma',^a notice r,rras necessary to be slven to the^person who is in OCCU ab.on. But there is no such record forthcomin as to what tvpe of notice was issued to the^parties and what eof ulr was conducted The report of the DepuhTahsildar cannot be construed as an enquiry report nor the proforma for the survey of wakf properties can be treated as a reprrrt of the Survey Commissioner. The report^as such has to c,:n{orm to the requirements of Section 4 of the -Act as has been held by the Supreme Court in the catena of decisions referred to above. It is also noticcd from the counter that the subject matter of the property lvas endowed by the owner of the land one Abbas Ali Khan to the Wakt Board in the year 1968 and the same was includerl in the list of wakf properties and the same was published in the Gazette d,ated 9-2-1989 along with other properties endowed by the same person. If this it to be accepted, it has to be held that the wakl was registered for the first time in 1968 and there could not have been any report of the Wakf Commissioner n 1967. Further the requirernents under Section 25 of the Wakf Act 1954 have

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to be complied with. There is not even an iota of proof of dedication by Abbas Ali Khan nor is there any Wakf deed. It is very much doubtful whether Abbas Ali Khan was alive in 1968 as carr be seen from the Judgment of II Additional Judge, City Civil Court in O.S.No. 368/69 dated 37-3-1982 filed by one Abdul Qavi against Laxmaiah and others. When such statutory requirements are not followed, the further question that falls for consideration is whether still the petitioners are required to approach the appropriate Tribunal or they can agitate under Article 226 of the Constitution of India.

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It is true that under Section 83 of the Act any dispute arising out of wakf properties can be agitated only before the Tribunal constituted under the Act. But, in the instant cases, the very principal requirement of notice and conducting enquiry as envisaged under the Act^are lacking. Therefore, the question of driving the petitioners to the Tribunal would not arise. Admittedly, the petitioners have made out their occupation rights from Mr. Rangaiah's possession and thereafter from Mr. Lakshmaiah and they have purchased the land under registered sale deeds and that too after obtaining appropriate permission from the comPetent^{authority and} it is also one of the contentions of the petitioners that^they have acquired title by adverse possession.^But, I^{am not} inclined to adjudicate the same^{inasmuch as} I^{am only} concerned with the validity of the notification^{published in} the Gazette on 9-2-7989. The decision^{referred to by the}

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learned C.ounsel for Wakf Board that the petitioners have to approach the Tribunal or the civil court, as the case mav be, cven after the expiry of ohe year period after the publication of Gazette notification is not applicable to the present cases, as that situation would not arise inasmuch as wher the notice itself is lacking and no purpose will be served t,y approaching the Tribunal or civil court. It is also to be noted that the report of the Survey Commissioner sent by the Government to the Wakf Board has no automatic acceptance. It is required to examine such report before p,ublishing the list. This statutory obligation is also totally lacking in this case. When the violation of statutorv

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rovlslcns 1s made out, it is alw4ys ope! to the parties to approach this Court under Article 226 of the Constitution of Indi,r. Admittedly, as can be seen from various documents filed by both the parties in these matters, nothin has been established to sustain the contention that the en rrin, was conducted as required under Section 4(3) of the Act. In such a situatiorL it cannot be said that the

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cl Notification is binding on the petitioners and accordingllz, the petitioners are entitled to challenge the same as it is illeeal and not en{orceable as far as the Detitioners are concerned. Accordingly, I have to reject the contention raised on behalf of the Wakf Board and also the Governrnent in this regard."

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ii, In the o::der dated 25.04.2024 passed by a Division Bench of this Court in W.l'. No.20875 of 2009, it was held as under:

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"12. lt is pertinent to note that in the counter aJfidavit filed by the Chief Executive Officer of the Waq( Board, except stating that the lands purchased by the petitioners faII under the limits of waqf property under Dargah Hazarath Syed Yaseen Shah Saheeb Rh situated at Iskilla^Vi1lage, Ramanapet, no material is placecl on record. The Gazette Notification was published under Section⁵ of the Act,¹⁹⁵⁴ in the month of February, 1990 and the same can be challenged within one year from the date of^{its publication.} No averment is forthcoming in the counter^{#fidavitas to} the dates or^pa rticulars with resard to the^{notices issued to} the^pe titioners vendors before notification^asrequired under the Act, 1954. It is also pertinent to^{note thatno} record whatsoever has been placed before^{this Court to} arrive at a conclusion/ finding^{that the saidextents of} lands in various survey numbers were^{waqf property.} Neither a copy of register of the^{waqfs(as required to be} maintained under Section 37 of^{the Act, 1954) has been} placed before this Court nor^a coPy of the survey^{report of} the authorities (as required under^{Section 4} of^{the Act,} 1954) has been placed."

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iv) In the order dated 25.04.2024 Passed^{by a Division Benchof this}

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Court in W.P. No.20875 of 2009,^{it was heldas under:}

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"12.It is pertinent to note that in the counter affidavit filed by the Chief Executive Officer^{of the Waqf Board, except} stating that the lands purchased^{by the petitioners fall}

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under the limits of waqf property under Dargah Hazarath Syed Yerseen Shah Saheeb Rh situated at Iskilla Village, Ramanapet, no materiai is placed on record. The Gazctte Notification was published under Section 5 of the Act, 1954 in the rnonth of February, 1990 and the same can be chalienged within one year from the date of its publication. No averment is forthcoming in the counter affidavit as to the dates or particulars wittr tegatd to the notices issuecl to the^petitioners vendors before notijication as required under thc Act 7954 It is also pertinent to note that no record rvhatsoever has been placed before this Court to arrive at a conclusion/ finding that the said extents of lands in various survey numbers were waqf propeltv. Neither a copy of register of the waqfs (as required to be maintained under Section 37 of the Ac! 1954) has been placed b'efore this Court nor a copy of the su-rvey report-of the authorities (as required under Section 4 of the Act, 195.1) has been placed."

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A Division Bench of this Court (erstwhile Andhra Pradesh) in |oint^{Collector,R.R.Diskict and othersv. Syed AhmedFlasanand} othersa, held as under:

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"14. It ir; settled proposition of law Khasra is a tecord of right anC entries therein shall be presumed to be correct unless the contrary is shown. (See Shik:harchand lain a.

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n zorr 1s1alr zor pr.a.y

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Digamber lain Praband Kaini Sabha (AIR 7974 SC 7178^: (1e74)l SCC 67s).

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The Khasra Pahani once prepared is a record of title and the same cannot be altered without there being any proceedings issued by the competent authority for the correction. \dhen the petitioners themselves claim the land in three separate blocks as per the purchase order, total extent of which is only 99^acres and the^{boundariesof three} plots as per the statement of permission do^{not tally with} the boundaries of Sy.No.425^{(old) and 228 new,petitioners} cannot take advantage of the amended^{revenuerecord} prepared subsequent to Khara Pahani^{for the year1954-55} to claim the property purchased by them fallsⁱⁿ Sy.No.425 (old)."

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From the aforesaid^judgments, it is^{clear that any survey} f enquiry conducted in notifying^{the propertyas Waqf under the Act is} not binding on a person^{who hasinterest over the said property if he} is not put on notice and^{such survey and consequentialgazette} notification are liable to be set^{aside as being violative of principles of} natural^justice. In the instant^{case,thereis no material/documentsto} show that the subject^{land was dedicatedfor religiousor charitable} purposes. It is alleged that^{duringthe enquiryconductedby the} Waqf Commissioner, public^{werenotified by beating of TOM-TOM}

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Learned Standing Counsel for Waqf Board has not been able to point out any statutory provision or precedent in support of his contention that the public notice by beating of TOM-TOM is a sufficient notice to the petitioner/ person interested. Moreover, there is no material filed to show that such TOM-TOM was made. It is clairned bv the petitioners th,nt the names of the predecessors-in-title of the petitioners have been recorded as pattedars in the Khasara Pahani (Ex.P-8) ancl subsequent pahanies, which is not in dispute. The title and possession of the predecessors-in-title of the peLitioners IS traceable to revenue documents since more than seventv five (75) years. Thus, tt,e alleged surwey/enquiry notifl,ing the subject land as Waqf land vrithout notice to the petitioners/owners of the Iand/predeces:;ors-in-tit1e is illegal and unsustainable

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In the tight of the above observations and following the law laid down in the cases referred at paragraph Nos.8 to 10, this writ petition is allon,ed. Consequently, the Gazette Notification No.7A dated 16.02.1989 in respect of the land admeasuring Ac.0-05 guntas in Survey No.39, shown at S1. No.4379, situated at Petbasheerabad

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Viliage, Quthbullapur Mandal, Ranga Reddy District is set aside

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There shall be no order as to costs.

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As a sequel thereto, rniscellaneous applications, if any, pending

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in this writ petitiory stand closed.

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SD/.K. SREE RAMA MURTHY

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ASSISTANf REdISTRAR RUE COPY// \

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SETON OFFIGER

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To,

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The Principal Secretary Minority Welfare Department, Secretariat, The State of Telangana, Hyderabad

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The Chief Executive Officer Telangana State Waqf Board, 1st Floor Razzak IVlanzil, Hyderabad

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J.A Two One CCs CC to to Sri G_P Katika for ft/inority Ravinder Welfare, Reddy, High Advocate tOpUClCourt for the Siate of Telangana, at Hyderabad [OUT]

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