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2012 DIGILAW 314 (AP)

Pilli Anjaneyulu Yadav v. Government of Andhra Pradesh, Rep. by its Principal Secretary, Revenue Department

2012-03-20

SAMUDRALA GOVINDARAJULU

body2012
JUDGMENT 1. Subject matter of this writ petition is Ac.19.12 guntas of land in S.Nos.403, 418, 419, 420 and 421 of Malkajgiri village, Rangareddy District which is a notified Wakf land as per Gazettee notification No.6-A, dated 09.02.1989 at Serial No.2893. The petitioner claims to have purchased the said land from one Syed Shujjath Ali Hussaini and others for valuable consideration under an agreement for sale dated 09.01.1974. According to the petitioner, he has been in possession of the said land in his own right and that Gazette notification No.6-A, dated 09.02.1989 notifying the land as Wakf property, was issued without due enquiry and without notice to all the persons concerned including the petitioner and that therefore the said Gazette notification No.6-A, dated 09.02.1989 is liable to be quashed by issuing of writ of certiorari under Article 226 of the Constitution. 2. It is contention of the petitioner that the petitioner was not aware of the Gazette notification until the 4th respondent – Mazhar Educational Society erected boards in the land by raising fencing around land. Though the impugned notification is of the year 1989, the petitioner approached this Court with this writ petition in the year 2012 on the allegation that the petitioner had knowledge about the said notification only when the 4th respondent erected fencing for the land and put up notice Board to the effect that the land belongs to the 2nd respondent – A.P.State Wakf Board and was allotted to the 4th respondent. When there is publication of notification in the Official Gazettee, it constitutes legal notice to one of all; and the petitioner cannot be heard to say that he came to know about the same only recently. In any event, remedy of the petitioner is before the Wakf Tribunal constituted under Section 83(1) of the Wakf Act, 1995 (in short, the Act) by way of filing appropriate suit or other proceeding questioning right of the 2nd respondent in the land and the notification, dated 09.02.1989. 3. In Board of Wakf v Anis Fatma Begum (2010(14) Supreme Court Cases) 588), the Supreme Court held: “10. 3. In Board of Wakf v Anis Fatma Begum (2010(14) Supreme Court Cases) 588), the Supreme Court held: “10. In our opinion, all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India. 14. Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words “any dispute, question or other matters relating to a Wakf or Wakf property” are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. 17. We may clarify that under the proviso to Section 83(9) of the Wakf Act, 1995 a party aggrieved by the decision of the Tribunal can approach the High Court which can call for the records for satisfying itself as to the correctness, legality or propriety of the decision of the Tribunal. This provision make it clear that the intention of Parliament is that the party who wishes to raise any dispute or matter relating to a Wakf or Wakf property should first approach the Tribunal before approaching the High Court. 18. It is well-settled that when there is a special law providing for a special forum, then recourse can be taken to the general law”. Therefore, remedy of the petitioner is primarily before the Wakf Tribunal and after the Wakf Tribunal decides the issue, then the aggrieved party will be always at liberty to approach this Court by way of a revision petition under proviso to Section 83(9) of the Act. 4. Therefore, remedy of the petitioner is primarily before the Wakf Tribunal and after the Wakf Tribunal decides the issue, then the aggrieved party will be always at liberty to approach this Court by way of a revision petition under proviso to Section 83(9) of the Act. 4. It is contended by the petitioner’s counsel that in A.P.State Wakf Board v B.Gowra Reddy (unreported judgment of this Court, dated 21.03.2011 in Writ Appeal Nos.745, 868, 778, 885, 729 and 878 of 2002), the Division Bench considered scope of Board of Wakf, West Bengal (1 supra) and came to the conclusion that the said decision was rendered by the Supreme Court in different factual context and that in a case where notification under Section 5 of the Wakf Act was issued without following the procedure prescribed under Section 4 of the Wakf Act and without giving notices to the persons in possession of the land and without making enquiry, then it is open to the person in possession to approach this Court under Article 226 of the Constitution and question the notification specifying a property as Wakf property. 5. In whatever context the Supreme Court analysed the provisions of the Wakf Act, 1995 and gave the above findings on analysis of the provisions therein, it is intention of the Supreme Court that general law must give way to the special law enacted under the Wakf Act. When the Supreme Court held that the words “any dispute, question or other matters relating to Wakf or Wakf property” are words of very wide connotation, it is not open to any inferior Court to abridge wide connotation or wide amplitude of the said words by confining ratio of the Supreme Court to facts of the case in which the said ratio was pronounced. Not only notification by which lands in question were notified as wakf properties but also the process which preceded issue of such notification comes within the wide connotation of “any dispute, question or other matters relating to a Wakf or Wakf Property” occurring in Section 83(1) of the Wakf Act, 1995 as laid down in Board of Wakf, West Bengal (2 supra). Wakf Tribunal is constituted under Section 83(1) of the Wakf Act for determination of any dispute, question or other matter relating to a wakf or wakf property under that Act. Wakf Tribunal is constituted under Section 83(1) of the Wakf Act for determination of any dispute, question or other matter relating to a wakf or wakf property under that Act. In these writ petitions, the petitioners contend that the respective lands are private patta lands. 6. Section 6 of the Wakf Act provides for remedy against a notification published under Section 5 of the Act to the following effect: “6. Disputes regarding Wakfs: - (1) 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: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of Wakfs. Explanation:- For the purposes of this Section and Section 7, the expression “any person interested therein”, shall, in relation to any property specified as Wakf property in the list of Wakfs published after the commencement of this Act, shall include also every person who, though not interested in the Wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4”. 7. It is contended by the petitioner’s counsel that the Supreme Court in Board of Wakf, West Bengal (1 supra) noted the fact that the Wakf Act will not be applicable to suits/appeals/revisions/proceedings commenced prior to 01.01.1996 when the Wakf Act came into force. In this case, neither the petitioner nor any other person instituted any suit or appeal or revision or any other proceeding questioning the impugned notification, dated 09.02.1989 prior to the Wakf Act coming into force on 01.01.1996. The petitioner wants to institute legal proceedings by way of the present writ petition in the year 2012 after the Wakf Act came into force. Therefore, the above observation of the Supreme Court cannot be applied to this writ petition. The petitioner wants to institute legal proceedings by way of the present writ petition in the year 2012 after the Wakf Act came into force. Therefore, the above observation of the Supreme Court cannot be applied to this writ petition. It is contended by the petitioner’s counsel that the notification, dated 09.02.1989 was a proceeding which was issued prior to 01.01.1996. The notification is no proceeding by itself. The proceeding referred by the Supreme Court was with reference to any proceeding instituted in any Court or other Tribunal. In any event, prior to the Wakf Act coming into force, remedy of the petitioner or any other interested person in questioning Gazettee notification No.6-A, dated 09.02.1989 is by way of filing a Civil Suit in a Civil Court, as no Wakf Tribunal was in existence in the year 1989 when the impugned Gazettee notification was published. Having failed to institute a suit in a Civil Court prior to 01.01.1996 or a suit or other proceeding in Wakf Tribunal after 01.01.1996, the petitioner intends to invoke Article 226 of the Constitution to interfere with the impugned Gazettee notification in exercise of extraordinary power of this Court. The Supreme Court in Board of Wakf, West Bengal (1 supra) expressly prohibited the remedy under Article 226 straight away in this Court. 8. Before parting with this writ petition, I would like to make a passing reference to the agreement for sale, dated 09.01.1974 in favour of the petitioner for the disputed land. At no point of time prior to the impugned notification, the said agreement in favour of the petitioner saw light of the day from the year 1974 to the year 1989 even though there were certain proceedings in Courts in relation to the disputed land. Of course, this is a matter which the appropriate Tribunal has to consider in case the petitioner approaches the Tribunal for any relief. 9. In the result, the Writ Petition is dismissed. However, the petitioner is at liberty to approach the Wakf Tribunal, Hyderabad for necessary relief, in case he is advised so.