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2004 DIGILAW 123 (AP)

Mir Muzzfar Hussain Khan v. A. P. Wakf Board

2004-02-04

ELIPE DHARMA RAO

body2004
ELIPE DHARMA RAO, J. ( 1 ) THIS application is filed seeking to review the order passed by this Court in w. P. No. 12980 of 1995, dated 05. 07. 2002, wherein this court passed orders by following the judgment of the Supreme Court reported in SAYEED ALI VS. ANDHRA pradesh WAKF BOARD, HYDERABAD1 holding that as the writ petition is barred by limitation, it is not maintainable. ( 2 ) FACTS of the case in brief are that the petitioners herein who are in possession of S. No. 49 of Yousufguda, Hyderabad, filed W. P. No. 12980 of 1995 against the action of the respondents in issuing notification No. 11-A in A. P. Gazette, dated 16. 03. 1989 by including the land of the petitioners and also to declare Sections 4,5,6,6-A, 21 and 27 of the Wakf Act, 1954 (herein after called as act ) as un-constitutional, violative of Articles 14, 15 and 50 of the Constitution of india and opposed to the principles of natural justice and to set aside the same by restraining the respondents from entering into or interfering with the right, title or possession of the petitioners or their successors. This court while dismissing the writ petition directed the petitioners to institute a suit in a competent Civil Court within a period of one year from the date of gazette notification and obtain a decree. Aggrieved by the same, this application is filed by the petitioners. ( 3 ) THE respondent-Wakf Board filed its counter affidavit contending that the respondent authorities are bound to issue notice under Section 54 of the Act for removing the encroachment of the Wakf property. Basing on the enquiry conducted by the Survey Commissioner under Section 4 of the Act, the official gazette notification was issued by the respondents. If the petitioners are aggrieved by the said notification, they should have approached the competent civil Court for adjudication of title. The petitioners instead of approaching the Civil Court, filed the writ petition claiming title over the Wakf property. Hence, prayed to dismiss the review petition. ( 4 ) THE learned counsel for the petitioners submits that as per the decision of the supreme Court reported in PUNJAB WAKF BOARD VS. The petitioners instead of approaching the Civil Court, filed the writ petition claiming title over the Wakf property. Hence, prayed to dismiss the review petition. ( 4 ) THE learned counsel for the petitioners submits that as per the decision of the supreme Court reported in PUNJAB WAKF BOARD VS. GRAM PANCHAYAT ALIAS GRAM sabha2, the limitation of one year for filing of the suit as specified in section 6 (1) of the Wakf Act, 1954 does not apply to the present case, where there is a dispute regarding the title between the Wakf Board and the third parties and as the notification, dated 16. 3. 1989 was published in the gazette without affording any opportunity of hearing or prior notice to the petitioners, the writ petition cannot be dismissed by following the judgment of the Supreme court reported in SAYYED ALI VS. ANDHRA PRADESH WAKF BOARD, HYDERABAD (Supra-1 ). ( 5 ) THE learned counsel also submits that as per Section 4 of the Act, the government may, by notification in the Official Gazette, appoint for the State survey Commissioner of Wakfs and as many Additional or Assistant Survey commissioners of Wakfs as may be necessary for the purpose of maki! ng a survey of wakfs existing in the State at the date of commencement of the act, but no such notice was issued. As per Sub-Section 4 (3) of the Act, the survey Commissioner shall, after making an enquiry, as he may consider necessary, submit his report to the State Government in respect of wakfs existing at the date of commencement of the Act in the State or any part thereof. The learned counsel also submits that after the receipt of the report from the Survey Commissioner, the State Government shall forward a copy of the same to the Wakf Board, which will examine the report under Section 4 (1) of the act and publish in the Official Gazette by showing the particulars about the number of Shia Wakfs and Sunni Wakfs separately, the nature and objectives of each Wakf. Section 6 of the Act deals with the disputes regarding wakfs. Section 6 of the Act deals with the disputes regarding wakfs. It reads as follows:"if any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final". ( 6 ) THE learned counsel for the petitioners further submits that basing on the above said provisions, the judgment of this court requires some modification. ( 7 ) ON the other hand, the learned Standing Counsel for the Board reiterating the contentions raised in the counter affidavit submits that the petitioners should have approached the Tribunal instead of approaching this Court and he relied on a decision of the Apex Court reported in BOARD OF MUSLIM WAKFS VS. SMT. HADI begum3, wherein it is held as follows: "at this stage, it may be mentioned that the challenge to the order of the Wakfs commissioner passed under S. 4 of the Act and the lists of wakf properties under s. 5 (2) of the Act was made in proceedings under Art. 226 of the Constitution. In view of the fact that a civil suit is maintainable to challenge the list published under S. 592), the scope of challenge to the said list in proceedings under Art. 226 of the Constitution would be confined to cases where the order of the Wakfs Commissioner passed under S. 4 of the Act suffers from want of jurisdiction and since the list issued under S. 5 (2) is based on the order of the wakfs Commissioner, the lack of jurisdiction in the Wakfs Commissioner to make the order would invalidate the list. The learned single Judge proceeding on that basis set aside the order of the Wakfs Commissioner dated July 9, 1962 and the list of wakf properties dated December 2, 1965, as amended on June 29, 1967 on the ground that while holding an enquiry under S. 4 of the Act, the Wakfs Commissioner had no jurisdiction to determine whether particular property was wakf property. The said basis for interference was not available to the Division Bench of the High Court in view of the decision of this Court in Board of Muslim Wakfs vs. Radha Krishna ( AIR 1979 SC 289 ) (Supra ). The Division Bench of the High Court in view of the decision of this Court in Board of Muslim Wakfs V. Radha Krishna ( AIR 1979 SC 289 ) (Supra ). The Division Bench of the High Court, has found that there was total lack of jurisdiction in the Wakfs Commissioner insofar as he proceeded to declare as wakf property the remaining land in Bagh Nawab Kallan Khan after excluding 1 bigha and 17 biswas of land covered by the mosque and the makbara, on the ground that the said land stood acquired by the State Government in the land acquisition proceedings initiated under the Jaipur Land Acquisition Act the state Government had taken possession of the said land as early as in the year 1945. In arriving at the said finding, the learned Judges have placed reliance on the earlier decision of the High Court dated March 11, 1957 in D. B. Civil Writ Petition No. 115 of 1955. We are unable to read the judgment of the High Court dated March 11, 1957 in the manner as read by the learned Judges of the High Court noticed that there was dispute between the parties on the question as to whether possession of the land had been taken in 1945 because while the case of the petitioner in that writ petition ( Sahibzada Zafar Jang Khan) was that he was still in possession of the land, the stand of the State Government was that possession had been taken in 1945. Without going into the said disputed question of fact, the High Court proceeded to deal with the matter on the assumption that the State Government had taken possession of the disputed land in 1945 as alleged by it. Examining the matter on that basis, the High Court observed that under the provisions of the Jaipur Land Acquisition Act, the land could vest in the State Government either under S. 16 or under S. 17 and that it was not the case of the State tht any action under S. 17 was taken in the case and the only provision which could, therefore, be invoked was S. 16. The High Court, examined whether an award under S. 11 had been made and whether the report of the Land acquisition Officer dated October 11, 1944 could be treated as an award under s. 11, after observing that an award must contain the compensation which in the opinion of the Land Acquisition Officer should be allowed, and that in the report dated October 11, 1944, no compensation had been mentioned in respect of the land in question and all that the report says is that when the Matmi case of sahibzada Zafar Jang Khan was decided the land will be given to him in exchange. ( 8 ) THE High Court found that the so-called award postpones the payment of compensation till the Matmi order was passed and no compensation was fixed in october, 1944 either in the shape of cash or in the shape of land to be given in exchange. In the view of the high Court there was no award xso far as this land was concerned under S. 11 and all that the Land Acquisition Officer did in 1944 was to postpone the making of the award and it was concluded; "therefore, in spite of the proceedings under the Jaipur Land Acquisition Act in 1944, the land cannot be said to have been vested in State. " While dealing with the relief which could be granted to the petitioner in that case, the High Court observed that the proceedings could not be quashed and the State should not be prohibited from depriving him of the possession of the land and tht all that the applicant could ask was that the postponed compensation should now be worked out and paid to him. The High court, therefore, while allowing the writ petition, directed the Collector of jaipur to work out the compensation in that case under the law and award it subject to whatever be the result of Matmi proceedings. It is thus evident that in the said judgment dated March 11, 1957, the High Court found that in spite of the proceedings under the Jaipur Land Acquisition act in 1944, the high Court found that in spite of the proceedings under the jaipur Land Acquisition Act in 1944, the land could not be sid to have been vested in the State under S. 16. This position continued till the award was made by the Land Acquisition Officer on July 30, 1962. It was, therefore, not correct for the Division Bench of the High Court in the judgment under appeal to say that at the time when the Wakfs Commissioner conducted the enquiry and passed the order dated July 9, 1962, the land in dispute had already vested in the State Government under the land acquisition proceedings under the then jaipur Land Acquisition Act in 1944. The order dated July 9, 1962 passed by the wakfs Commissioner cannot, therefore be held to be an order passed without jurisdiction on that account. . . . We do not propose to go into the question as to the effect of the award dated july 30, 1962 on the list of wakf properties published under Sub-s. (2) of S. 5 of the Act in the Rajasthan Gazette dated December 2, 1965, as amended by the subsequent notification dated June 29, 1967. Nor do we propose to go into the validity of the said acquisition proceedings. We leave it open for the parties to agitate this issue, if so advised in an appropriate forum. We also wish to make it clear that the respondents No2. to 8 will not be precluded from questioning the validity of the list of wakf properties insofar as they relate to the wakf in question as published in the Rajasthan Gazette dated December 2, 1965, as amended by the subsequent notification dated June 29, 1967, in any proceedings which they initiate in accordance with the provisions of law. " ( 9) THE point for consideration in this review petition is whether the order of dismissal of the writ petition by following the decision of the Supreme Court reported in SAYEED ALI VS. ANDHRA PRADESH WAKF BOARD, HYDERABAD (Supra-1) is correct or not, by virtue of the later judgment of the Supreme Court reported in punjab WAKF BOARD VS. GRAM PANCHAYAT (Supra-2 ). In a decision reported in SAYEED ALI VS. ANDHRA PRADESH WAKF BOARD, HYDERABAD (Supra-2) it is held that if a suit was not filed within one year, the notification would be binding not only on those interested in the trust but even strangers, claiming interest in the property in question, provided they were given notice in the inquiry under Section 4 preceding the notification under section 5 (2 ). Heard the learned counsel for the petitioners and the learned Standing counsel for the respondents. ( 10 ) AS per the decision of the Supreme Court reported in KARNATAKA WAKF BOARD VS. STATE OF KARNATAKA, the question of limitation of one year does not arise. Para 12 of the judgment reads as follows:"the explanation added to Section 6 (1) can operate against these plaintiffs only after the insertion of the same in S. 6 of the Act. Prior to the insertion of the Explanation, a third party claiming independent title over a property, which is illegally included as Wakf property was entitled to file a suit within the period provided for under the Law of Limitation. Therefore, the inhibition provided under Proviso to S. 6 regarding the period of limitation was not applicable to the plaintiffs at the time when they filed the suits". ( 11 ) IT is not in dispute that during the course of survey, no notice was given to the petitioners to represent their version before the Survey Commissioner. As the petitioners are strangers to the dispute, the decision of the Supreme Court reported in SAYEED ALI VS. ANDHRA PRADESH WAKF BOARD, HYDERABAD (Supra-1) does not apply to the case of the petitioners and the only course open to them is to approach the competent Civil Court to put their grievance against the notification, dated 16. 03. 1989. ( 12 ) IN view of the above, the judgment rendered in W. P. No. 12980 of 1995, dated 05. 07. 2002 of this Court requires reconsideration. ( 13 ) ACCORDINGLY, the order, dated 05. 07. 2003 is reviewed and the writ petition is disposed of directing the petitioners to approach the competent civil court for the redressal of their grievance by filing a suit and on filing such a suit, the civil Court shall pass orders in accordance with law as expeditiously as possible. It is needless to observe that any observation made in this writ petition cannot be taken into consideration. The review petition is accordingly allowed.