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2021 DIGILAW 385 (TS)

Megavath Sardar v. State of Telangana

2021-12-02

A.ABHISHEK REDDY

body2021
ORDER : Heard Sri E.Madan Mohan Rao, the learned Senior Counsel appearing for the petitioners the learned Government Pleader for revenue for respondent Nos.1, 2, 4 and 5, and Sri Abu Akram, the learned Standing Counsel for respondent No.3-Wakf Board. With their consent, the Writ Petition is disposed of at the stage of admission. 2. This writ petition is filed questioning the action of the respondent in showing the land belonging to the petitioners, admeasuring Ac.9.00 guntas, in survey No.280, Maheshwaram Village and Mandal, Ranga Reddy District, in the webland register/prohibitory list as wakf land. 3. Learned Senior Counsel appearing for the petitioners has stated that the subject land is a private patta land and Certificate of Ownership under 38-E of the Andhra Pradesh (Teleangana Area) Tenancy and Agricultural Lands Act, 1950 (for short, the Tenancy Act), was issued in favour of the petitioners grandfather viz., Lakiya, way back on 31.07.1975. Learned Senior Counsel has drawn the attention of this Court to the Munthakhab, dated 14-10-2005, issued by the Wakf Boads, which shows that one Syed Jamaluddin appears to have created a Munthakhab in favour of the Wakf Board, on the basis of which, the subject property has been registered under Section 36 of the Waqf Act, 1955 (for short, ‘the Waqf Act’) and entered in the Book of Endowments at Page no.146, Sl.No.11. That except registering the said property, no notification has been issued till date. That by virtue of issuance of Section 38-E Certificate in favour of the grandfather of the petitioner, the said Jamaluddin has lost all his rights and interest over the subject property. Therefore the Munthakhab is not valid in the eye of law and the same has to be discarded. The learened Senior Counsel has stated that the pahani of the year 1950 shows the name of the pattadar as Mulla Baksh, and not the name of the said Jamaluddin. That the grandfather of the petitioners was recognised as protected tenant an was issued 38-E Certificate, and a the said 38-E Certificate has not been challenged. it has become final. That once 38E Certificate is issued in favour of a Protected Tenant, the same is conclusive poof of ownership not only against the pattadar but all the persons claiming through the pattadar. Moreover, as seen from the Munthakhab dated 14.10.2005, the said Munthakhab was created for the purpose of Islamic Social Service Society. it has become final. That once 38E Certificate is issued in favour of a Protected Tenant, the same is conclusive poof of ownership not only against the pattadar but all the persons claiming through the pattadar. Moreover, as seen from the Munthakhab dated 14.10.2005, the said Munthakhab was created for the purpose of Islamic Social Service Society. But, in the letter dated 12.11.2010, addressed by the President of Islamic Social Service Society to the Collector, Ranga Reddy District, it is stated the Syed Jamaluddin donated the subject land to the Society for benefit of Muslim Maternity Hospital and that the Wakf Board has no power or authority to claim the subject property, as there is no publication of Notification in the official Gazette, as required under Section 5(2) of the Waqf Act. Therefore the Question of showing the subject land in the prohibitory properties list as wakf property cannot be countenanced either on facts or on question of law. 4. The learned Standing Counsel for the Wakf Board has stated that once the Munthakhab is created, the subject property will remain as wakf property forever and the writ petition is not maintainable. That the petitioners have to approach the Wakf Tribunal seeking declaration of title, but they cannot agitate their rights before this Court under Article 226 of the Constitution of India. Learned Standing Counsel has further stated that as per the provisions of the Tenancy Act, more particularly, Section 102(e) thereof, tenancy is not applicable to the wakfland, and therefore, the petitions cannot claim the subject land as tenancy land. Hence, the Sub-Registrar ha rightly refused to entertain the documents presented by the petitioner. That the writ petition is liable to be dismissed in limine and the petitioners have to be relegated to the Wakf Tribunal for redressal of their grievance. Unless and until the wakf deed, which is registered under Section 36 of the Waqf Act, is set aside, the petitioners will not have any right over the subject land. Moreover, as per the provisions of Section 22-A of the Registration Act, 1908, the wakf lands are on par with the Government lands and, as such, they are rightly included in the list of prohibited properties and there is not need to issue any separate Notification as contemplated under Section 22-A of the Registration Act, 1908. 5. Moreover, as per the provisions of Section 22-A of the Registration Act, 1908, the wakf lands are on par with the Government lands and, as such, they are rightly included in the list of prohibited properties and there is not need to issue any separate Notification as contemplated under Section 22-A of the Registration Act, 1908. 5. Heard the rival submissions made by the counsels and perused the documents filed. 6. A perusal of the documents shows that one Lakiya, who was protected tenant, was issued 38-E Certificate, dated 31.07.1975, vide File No. B/413/LRE/75, in respect of the land, admeasuring Acs. 19.30 guntas, in Survey No. 280 of Maheshwarm Village and Mandal, Ranga Reddy District. After the death of Lakiya, names of his legal heirs were recorded in the revenue records as pattadars and possessors of the subject land vide proceeding dated 27.10.1988 Furthermore, the pahani of the year 1950 and other pahanies filed by petitioners clearly show the name of the pattadar of the subject land as “Mulla Baksh” and the tenant as “Lakiya.” 7. Even though the learned Standing Counsel for Wakf Board has vehemently argued that the subject property is part and parcel of the property, which has been registered on 14.10.2005, under Section 36 of the Wakf Act and which has been entered in the Book of Endowments, on the basis of which Munthakhab has been issued vide F. No. 11/2/1997, dated 14.10.2005 and that the Wakf of the said property in Syed Jamaluddin, there is nothing on record to show that the said Syed Jamaluddin is the owner and possessor of the subject property as on 14.10.2005. Moreover, as per the provisions of the Tenancy Act, once the Ownership Certificate is given to the protected tenant under the provisions of the Tenancy Act, the said Protected Tenant will become the absolute owner and possessor of the property having all rights over the subject property for which the 38E Certificate has been issued and the original landlord will lose right, title and interest over the said property. 8. The Hon'ble Supreme Court in Kotaiah vs. The Property Association of the Baptist Churches Pvt. Ltd. AIR 1989 SC 1753 held the protected tenant has a right to become full owner and therefore, his tenancy cannot be terminated. It is further held that protected tenant cannot be dispossessed illegally either by the landlord or anybody else. 8. The Hon'ble Supreme Court in Kotaiah vs. The Property Association of the Baptist Churches Pvt. Ltd. AIR 1989 SC 1753 held the protected tenant has a right to become full owner and therefore, his tenancy cannot be terminated. It is further held that protected tenant cannot be dispossessed illegally either by the landlord or anybody else. If so dispossessed, the Tahsildar has to exercise power under Section 32 of the Act. 9. In Sada vs. The Tahsildar, Utnoor, Adilabad District, 1987 (2) ALT 749 (FB), a full Bench of the Andhra Pradesh High Court held as under: “It is clear from S.38E that it is for these “Protected Tenants” who are finally declared to “protected tenants” and included in the Register prepared for that purpose and for whom protected tenancy certificates have been, that ownership rights are envisaged in S.38-E(1), subject of course, to the limitation with regard to extent of holdings as specified in S.38(7) and to the proviso to S.38-E(1). Once persons who held land on the dates or for the periods mentioned in Ss. 34, 37 and 37-A and the requirement of physical possession on the dates required in those sections is satisfied, such person have become “protected tenants.” Once a person becomes a protected tenant, he earns a qualification to become an owner by force of statute, subject of course to the qualification regarding extent in S.38(7) and to the proviso to S.38-E(1). There is no requirement in the Act that he should also be in possession on the date specified in the notification issued in S.38-E(1). The word “all lands held by protected tenants” more a description or the lands with regard to which the right as protected tenant has been declared and there are no words requiring physical possession on the date specified in the notification........” 10. In Sanjeevayya Nagar Co-operative House Building Society Ltd. vs. S. Mallareddy alias Parvathalu, AIR 1994 Andhra Pradesh 57, a Division Bench of the Andhra Pradesh High Court held as under: “A protected tenant is deemed to have become a full owner by virtue of S.38E and where the land stood transferred to him with effect from the date specified under S.38E (1) i.e. 1-1-93 and after his death his heirs acquired absolute title in the land the original landholder ceased to be the owner from 1-1-1973. Since the original landholder did not have any title, he was not competent and could not covey any title in the land to third party and therefore the third party to whom the land is purported to have conveyed by the landholder, could not deny the title of and through him of his heirs. From the fact that the heirs of the tenants signed is witnesses the sale deeds between the original landholder and the third party, the inference that they must have acquiesced in the sale could not be drawn, since on the dates of execution of sale deeds they did not continue as protected tenants off the original landholder, but had become absolute owners.” 11. As seen from the record, 38-E Certificate was issued in favour of Lakiya in respect of the subject property on 31.07.1975, Whereas the subject property has been registered under Section 36 of the Wakf Act on 4.10.2005 i.e. almost after a lapse of 30 years. There is no evidence to show that the Wakf-Jamaluddin is the owner and possessor o the subject property or that he was having right, title an interest over the subject property as on 14.10.2005. Moreover, 38-E Certificate issued in favour of the grandfather of the petitioners has not been challenged and the same has become final. Therefore, this Court is of the opinion that showing the property of the petitioners in the prohibited properties list cannot be countenanced and the same has to be deleted. 12. In view of the above settled legal position and on the facts of this case, the writ petition is allowed and the respondent No.5 is directed to delete the subject land, admeasuring Ac.9.00 guntas, in Survey No.280, Maheshwaram Village and Mandal, Ranga eddy District, from the prohibited properties list. Consequently, the Registering Authority is directed to receive, register and release the documents presented by the petitioners, subject to compliance of the provisions of the Registration Act, 1908 and Indian Stamps Act, 1899. This order does not in any way preclude the Wakf Board from establishing its right, title and interest before an Appellate Authority, it they are so advised. The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.