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2021 DIGILAW 853 (AP)

Saran Nivas Plots Owners Welfare Association v. State of Andhra Pradesh

2021-12-17

D.V.S.S.SOMAYAJULU

body2021
ORDER : 1. These writ petitions are filed questioning the inclusion of land of three different extents in Sy.No.19 of Dinnedevarapadu Village of Kurnool under Section 22-A (1) (c) of Registration Act, 1908 (for short ‘the Act’). 2. Counters are filed in two matters and with the consent of all the learned counsels, as common questions of fact and law arise; as the prayer in all the matters relates to the land in Sy.No.19 of Dinnedevarapadu Village, all the three writ petitions were taken up for hearing. 3. The petitioner in WP.No.16911 of 2021 is Sai Saran Plots Owners Welfare Association and petitioner Nos.2 to 130 claim to be the owners of individual plots of land. The first petitioner-association has filed the writ and is espousing the cause of the other owners. The essential contesting respondents are the District Registrar and the State Waqf Board. 4. In WP.No.17177 of 2021, the petitioner is a trust. The respondents are the same. The petitioners are the owners of Ac.6.22 cents in Sy.No.19 of Dinnedevarapadu Village. 5. In WP.No.17276 of 2021, the petitioners are claiming to be the owners of various extents of land in total Ac.7.47 cents in Sy.No.19 of Dinnedevarapadu Village. When they want to register their documents and the sub-registrar was asked to give a market value certificate, they noticed that the property is included in the 22-A list of prohibited properties. Sri Gudapati Venkateswarlu, learned counsel argued for the petitioners. Government Pleader for Revenue and Registration Department argued for the respondents and the standing counsel Shaik Karimullah argued for the Waqf Board. 6. The crux of the submission of G.Venkateswarlu learned counsel for the petitioners is that the Waqf Board cannot claim any right over the property. It is submitted that on the basis of a letter dated 16.02.2016, issued by the Waqf Board, the entire property is included in the prohibited list. Learned counsel submits that the Division Bench order dated 20.06.2011 passed in WP.No.989 of 2007 is a binding precedent and it is pertaining to the entire land in Sy.No.19 of Dinnedevarapadu Villag. Learned counsel points out that after a comprehensive enquiry, the Division Bench of the high Court clearly held that the inclusion of Ac.59.90 cents of land in Sy.No.19 in Dinnedevarapadu Village as Waqf property is incorrect. Learned counsel points out that after a comprehensive enquiry, the Division Bench of the high Court clearly held that the inclusion of Ac.59.90 cents of land in Sy.No.19 in Dinnedevarapadu Village as Waqf property is incorrect. The Division Bench also considered the judgment in O.S.No.43 of 1969 dated 27.10.1969, wherein the suit filed by the Waqf Board for this land was dismissed. Learned counsel argues that the order of the Division Bench is a comprehensive order which has discussed the entire gamut of issues that are raised and thereafter came to a conclusion that the Waqf Board cannot claim any rights in this property. He also points out that in the conclusion, the Division Bench directed the Waqf Board to issue a fresh notification or to file a civil suit for declaration. He points out that till date neither a fresh notification was given, nor a civil suit was filed. Learned counsel also relies upon the order dated 27.10.1969 in O.S.No.43 of 1969 of the Subordinate Judge, Kurnool, which also pertains to the land in Sy.No.19 of Dinnedevarapadu Village. The first issue framed in the suit is about the classification of the suit property as Waqf Property. Counsel points out that after considering the evidence the suit was dismissed. With regard to issue No.1 also, the learned counsel points out that after considering the evidence, the Court came to a conclusion that issue No.1 is held against the plaintiffs. Learned counsel also relies upon subsequent order which was passed by the learned single Judge of this Court in WP.No.29663 of 2012 holding that inclusion of the land under Section 22-A of the Act is not correct. The letter dated 27.08.2019 issued by the Waqf Board also confirms that no appeal was filed against the Division Bench order. Therefore, learned counsel submits that all the three writ petitions are to be allowed granting the prayers, as the inclusion of the land in the prohibited list is incorrect. 7. In reply to this, learned Government Pleader argues that in view of the communication received from the Waqf Board in 2016, the land in Sy.No.19 measuring Ac.59.90 cents of Dinnedevarapadu Village is classified as a Waqf Property. It is also argued that the appropriate authority has to be approached under Section 22-A for deletion of the property from the list and the writ is not a proper remedy. 8. It is also argued that the appropriate authority has to be approached under Section 22-A for deletion of the property from the list and the writ is not a proper remedy. 8. On behalf of the Waqf Board, a number of legal and factual issues are argued by the learned counsel for the Waqf Board in line with the counter affidavit that has been filed. He submits that a notification was initially issued in the A.P.Gazette on 24.10.1963 and at Sl.No.3035 of notification, the present property is included. Thereafter, he submits that as an error was noticed in the notification an addendum on 01.09.2005 was also issued with the necessary corrections. He submits that the addendum relates back to the date of the original notification. Learned standing counsel therefore argues that the entire survey number is rightly included in the prohibited list. He also submits that once it is a Waqf property it always continues to be a Waqf property and a writ is not an appropriate remedy even if the petitioners wish to stake a claim. According to him, any dispute with regard to the Waqf has to be decided by the statutory Tribunal only constituted under the Act and not by a writ petition. He also argues in the alternative that petitioners have wrongly invoked the jurisdiction of the writ Court and should invoke/approach the statutory authorities for correction of the entries under Section 22-A, if they wish. 9. After considering the submissions made, this Court is of the opinion that the entire issue in this case revolves around the judgment of the Division Bench of the combined high Court in WP.No.989 of 2007 dated 20.06.2011. A reading of this judgment makes it very clear that the Division Bench was dealing with Gazette notification of 24.10.1963 wherein at Sl.No.3035 a reference is made to the property in this village. In addition, they also considered the addendum notification by which Sy.No.19 T.D.No.1679 measuring Ac.59.90 cents was included as a Waqf property. The copy of the Commissioner’s report on the basis of which the notifications were issued is considered by the Division Bench. It is clearly noticed by the Division Bench that commissioner in his report does not mention the name of the Waqf, title deeds, dates etc. The Commissioners report (as per the Division Bench) states that the properties were alienated by the date itself. It is clearly noticed by the Division Bench that commissioner in his report does not mention the name of the Waqf, title deeds, dates etc. The Commissioners report (as per the Division Bench) states that the properties were alienated by the date itself. The Division Bench order held that neither from the annexure to the report of the Commissioner of Waqf, nor from any document produced on behalf of the Waqf Board, it is clear as to how the property was endowed or settled in favour of the mosque. The lack of details with regard to the date or description of the instrument by which the property was settled is also noticed. 10. The basis on which the Commissioner has recorded this property as belonging to the mosque is not apparent from the Commissioner's report as per the Division Bench. Thereafter, the decision in O.S.No.43 of 1969 is also reproduced. The Division Bench held that the Civil Court clearly declared that the Waqf Board failed to establish their title to the property. The finding on issue No.1 in this suit is reproduced in the order. The Gazette notification dated 24.10.1963 was also held by the Civil Court to be issued without a proper enquiry and this is also noticed by the Bench. Even with regard to the addendum notification issued, the Division Bench held that before such an addendum is issued, the specific description of the properties with credible and proper material should be there to justify the assumption that the property belongs to the Waqf. The Division Bench noticed that there is no material justifying the same. Therefore, it was held that the addendum notification is also arbitrarily issued. Ultimately, the Court came to the conclusion that in the absence of any material to prove that the property was actually waqf property, only on the basis of a notification, it cannot be held to be a waqf property. 11. As rightly pointed out by the learned counsel for the petitioner, even in O.S.No.43 of 1969 and while discussing the first issue, the learned trial Judge held that the issuance of a Gazette notification without any enquiry cannot lead to a conclusion that the Waqf Board can claim a right over the property. Issue No.1 was held against the petitioner and after considering the other issues, suit was also dismissed. 12. Issue No.1 was held against the petitioner and after considering the other issues, suit was also dismissed. 12. These two findings are findings of Courts of competent jurisdiction. Admittedly, the Waqf Board has not filed any appeal against the order of the Division Bench. They not filed a suit in which liberty was given by the Court in WP.No.989 of 2007 (subject to limitation etc.,). No material is placed before this Court also to show how the property was included in the list of waqf properties. Despite the clear findings of Courts and the reasons for the findings being apparent, the Waqf Board could not establish that these properties are actually endowed/settled on the waqf. No details of any such deed, document etc., are forthcoming to establish that the property is Waqf property even in this writ. Hence, this Court has to hold that the issues already decided in WP.No.989 of 2007 and O.S.No.43 of 1969 clearly prohibit the Waqf Board from asserting any title. Neither the original notification nor the addendum notification can be said to be valid documents in the absence of any clear details to show that these notifications were issued and after a proper enquiry and application of mind. The findings of the Division Bench and the Subordinate Judges Court also are against the Waqf Board in this aspect. Hence, for all these reasons, this Court has to negative the contentions urged by the Waqf Board. 13. In WP.No.16911 of 2021, there shall be a direction that the inclusion of the land under section 22-A of the Act of Sy.No.19 of Dinnedevarapadu Village is held to be contrary to law. The respondent authorities, namely respondent No.5 and his subordinates are directed to receive and register the deeds with regard to the petitioners’ properties situated in Sy.No.19 of Dinnedevarapadu Village, Kurnool Mandal and District if the documents are otherwise in accordance with the provisions of the Stamp Act and the Registration Act. The registration cannot be stopped merely on the ground that the property is included under Section 22-A of the Act. 14. In WP.No.17177of 2021 also, there shall be a direction that the land measuring Ac.6.22 cents in Sy.No.19 of Dinnedevarapadu Village has to be deleted from Section 22-A list by the concerned authorities. The registration cannot be stopped merely on the ground that the property is included under Section 22-A of the Act. 14. In WP.No.17177of 2021 also, there shall be a direction that the land measuring Ac.6.22 cents in Sy.No.19 of Dinnedevarapadu Village has to be deleted from Section 22-A list by the concerned authorities. The documents presented by the petitioners should be accepted for registration and processed as per law by the 5th respondent and his subordinates if the documents are otherwise in order and in accordance with the Stamp Act and the Registration Act. Registration cannot be held back or refused on the ground that property is included under Section 22-A. 15. In WP.No.17276 of 2021 also, there shall be a direction that the inclusion of land measuring Ac.7.47 cents in Sy.No.19 of Dinnedevarapadu Village is incorrect and the said property should be deleted from section 22-A list within a period of one month from the date of receipt of a copy of this order. In other cases also, the same time period is given. There shall also be a direction to the 5th respondent and his subordinates to receive and register the documents presented by the petitioners if the same are otherwise in order and in accordance with the Stamp Act and Registration Act. Registration cannot be refused on the ground that the property is included in 22-A list. 16. With these observations, all the writ petitions are allowed. No order as to costs. As a sequel, the miscellaneous applications, if any pending, shall stand closed.