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2023 DIGILAW 1042 (AP)

AP State Wakf Board v. Reddy Suresh Kumar

2023-07-11

A.V.SESHA SAI, R.RAGHUNANDAN RAO

body2023
JUDGMENT : A.V. Sesha Sai, J Since these two writ appeals arise out of one order, this Court deems it appropriate to hear and dispose of these two appeals by way of this common judgment. 2. Heard Sri P. Veera Reddy, learned Senior Counsel, representing Sri S. Arifulla, learned Standing Counsel for the Andhra Pradesh State Waqf Board, for the appellant in WA.No.643 of 2022, Sri P. Subhash, learned Government Pleader for Revenue, for the appellants in WA.No.456 of 2022 and Sri O. Manohar Reddy, learned Senior Counsel, representing OMR Law Firm, for the writ petitioner. 3. Challenge in these appeals, preferred under Clause 15 of the Letters Patent, is to the order dated 07.10.2021, passed by the learned single Judge in WP.No.3348 of 2021. 4. By way of the order impugned in these appeals, learned single Judge allowed the writ petition, setting aside the order, dated 24.11.2020, passed by the Tahasildar, Srikakulam, Srikakulam District-4th respondent in the writ petition. The subject matter of the case on hand is an extent of Ac.1.03 cents in Sy.No.120 of Fazulbagpeta Village, Srikakulam Mandal, Srikakulam District. Writ petitioner submitted an application through mee-seva, requesting the Tahasildar to effect mutation in his favour in the revenue records in respect of the subject land situated in Sy.No.120 of Fazulbagpeta. The Tahasildar issued proceedings on 23.09.2020, directing mutation of the name of the writ petitioner in the revenue records. Admittedly, after the completion of the enquiry and the orders passed by the Tahasildar, on 23.09.2020, one Sri Habibul Khan, S/o late Khaliulla Khan, filed an objection petition stating that the subject land is a waqf property. On the basis of the said petition and the objections contained therein, the Tahasildar passed an order vide proceedings Rc.No.481/2020/A, dated 24.11.2020, setting aside the orders passed in favour of the writ petitioner earlier on 23.09.2020. 5. Challenging the validity and the legal sustainability of the afore-said order, dated 24.11.2020, the writ petitioner approached this Court by way of filing WP.No.3348 of 2021. The learned single Judge vide the order dated 07.10.2021, allowed the writ petition, setting aside the order dated 24.11.2020 and consequently directed the Tahasildar to mutate the name of the writ petitioner by following necessary procedure in accordance with law, within a period of four weeks from the date of receipt of a copy of the said order. 6. The learned single Judge vide the order dated 07.10.2021, allowed the writ petition, setting aside the order dated 24.11.2020 and consequently directed the Tahasildar to mutate the name of the writ petitioner by following necessary procedure in accordance with law, within a period of four weeks from the date of receipt of a copy of the said order. 6. Sri P. Veera Reddy, learned Senior Counsel, representing Sri S. Arifulla, learned Standing Counsel for the A.P. State Waqf Board, contends that having regard to the pendency of civil cases and other writ petitions before this Court, the learned single Judge is not justified in passing the order under challenge. In elaboration, it is submitted by the learned Senior Counsel that the civil revision petition filed by the A.P State Waqf Board vide CRP.No.44 of 2020 is pending consideration before this Court. It is also the submission of the learned Senior Counsel that the subject land is a notified waqf as such the learned single Judge grossly erred in setting aside the order passed by the Tahasildar. 7. Sri P. Subhash, learned Government Pleader, while totally supporting the arguments of the learned Senior Counsel, Sri P. Veera Reddy, submits that the order passed by the Tahasildar is obviously in the direction of rectifying the error committed earlier as such, the order of the Tahasildar, dated 24.11.2020, ought not to have been interfered with. 8. Strongly resisting the writ appeals, it is contended by Sri O. Manohar Reddy, learned Senior Counsel, representing OMR Law Firm, for the writ petitioner, that there is absolutely no error nor there exists any infirmity in the order passed by the learned single Judge as such, the same warrants no interference of this Court under Clause 15 of the Letters Patent. In elaboration, learned Senior Counsel contends that in O.S.Nos.1 of 2012 and 147 of 2012 on the file of the Andhra Pradesh State Waqf Tribunal, applications were filed by the writ petitioner for rejection of plaints and the said applications were allowed as such, the contention contra advanced by the learned Senior Counsel for the A.P State Waqf Board cannot stand for judicial scrutiny. It is the further submission of the learned Senior Counsel, Sri O. Manohar Reddy, that the order impugned in the writ petition suffers from inherent lack of jurisdiction and is not traceable to any provisions of either the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 [for short, ‘the Act’] or the Rules made thereunder. It is also the submission of the learned Senior Counsel that having regard to the findings recorded by the learned Presiding Officer, A.P State Waqf Tribunal in IA.No.182 of 2018 in OS.No.147 of 2012, the State Waqf Board cannot claim any right over the subject property. 9. In the above background, now the issues that emerge for consideration of this Court in these two appeals, preferred under Clause 15 of the Letters Patent are: 1. Whether the order passed by the learned single Judge, having regard to the facts and circumstances of the case, is sustainable and tenable? 2. Whether the order under appeals warrants any interference of this Court under Clause 15 of the Letters Patent? 10. The information available before this Court, in clear and vivid terms, discloses that the writ petitioner obviously in terms of Section 5 of the Act, made an application to the competent authority i.e., the Tahasildar for amendment and updating of Record of Rights on 03.09.2020. A perusal of the order impugned in the writ petition shows that after submission of the said application, objections were called for and thereafter the Mandal Revenue Inspector also submitted a report and eventually the Tahasildar passed an order on 23.09.2020, directing mutation of the name of the writ petitioner in the revenue records. Admittedly, after the said orders, one Habibul Khan, claiming to be the Mutawali of waqf institution, filed objections stating that the subject property is a waqf property and acting upon the said objections once again the Tahasildar initiated action and while arriving at the conclusion that the subject property falls under Urban Cluster and lacks agricultural nature, passed the impugned order, dated 24.11.2020, purportedly in exercise of the powers conferred under sub-Rule 3 of Rule 15 of the Andhra Pradesh Rights in Land and Pattadar Pass Books Rules, 1989 [for short, ‘the Rules’]. By way of the said order, the earlier order, directing mutation of the entries in favour of the writ petitioner, dated 23.09.2020, was set aside by the Tahasildar. By way of the said order, the earlier order, directing mutation of the entries in favour of the writ petitioner, dated 23.09.2020, was set aside by the Tahasildar. In this context, reference to Section 5 of the Act is necessary. The said provision of law confers power on the Tahasildar to undertake amendment and updating of Record of Rights. In fact, on an application filed by the writ petitioner, in exercise of the power conferred under sub-Section 3 of Section 5 of the Act, the Tahasildar passed an order. It is also not in dispute that any order passed by the Tahasildar under sub-Section 3 of Section 5, either making an amendment or refusing to make an amendment is appealable before the Revenue Divisional Officer. Admittedly, in the instant case, no such appeal was filed. However, one Habibul Khan filed objections for the order passed by the Tahasildar under sub-Section 3 of Section 5 of the Act before the same authority and the Tahasildar passed the order impugned in the writ petition, on 24.11.2020, setting aside the earlier orders passed in favour of the writ petitioner. A perusal of the order, dated 24.11.2020, makes it clear that the Tahasildar passed the said order purportedly in exercise of the powers conferred under sub-Rule 3 of Rule 15 of the Rules framed under the Act. Rule 15 of the Rules prescribed the procedure for rectification of entries in Record of Rights. Sub-Rule 3 of Rule 15 of the Rules confers jurisdiction on the Mandal Revenue Officer/Tahasildar to initiate proceedings for correction of any mistake in the Record of Rights which he discovers himself or which is reported to him by any other Revenue Officer. A plain reading of the said provision of law makes it very much evident that the said contingency is totally absent in the case on hand as in the instant case the updation and amendment were effected admittedly under sub-Section 3 of Section 5 of the Act. Therefore, the contention contra advanced by the learned Government Pleader to bring the order within the parameters of the said Rule is liable to be rejected and is accordingly rejected. 11. Therefore, the contention contra advanced by the learned Government Pleader to bring the order within the parameters of the said Rule is liable to be rejected and is accordingly rejected. 11. Coming to the pendency of the civil suits and effect of the same on the present writ petition, it is required to be noted that one Smt Sabarunissa Begum, W/o. Yunus Shariff and two others instituted OS.No.1 of 2012 on the file of the Andhra Pradesh State Waqf Tribunal, seeking the relief of perpetual injunction against as many as 16 defendants including the writ petitioner, who figured as 16th defendant in the said suit. It is not in controversy that in the said suit the writ petitioner herein filed IA.No.1492 of 2018 under the provisions of Order VII Rule 11 of the Code of Civil Procedure and it is also not in controversy that the said IA was allowed by the Waqf Tribunal, rejecting the plaint on the ground of existence of no cause of action. However, the fact remains that as against the consequential dismissal of the suit, CRP.No.44 of 2020 had been filed before this Court and the same is pending. It is also significant to note that the plaintiffs in the aforesaid suit also instituted OS.No.147 of 2012 on the file of the Andhra Pradesh State Waqf Tribunal for a declaration that the registered sale deed, dated 05.06.2012, executed by the 2nd defendant therein in favour of the 3rd respondent therein/writ petitioner herein is void and not binding on the plaintiffs and they also sought for perpetual injunction, restraining the defendants 2 & 3 in the suit from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit property. In the said suit also, the writ petitioner, who was arrayed as 3rd defendant, filed IA.No.182 of 2018 under Order VII Rule 11 CPC praying the State Waqf Tribunal to reject the plaint. The said application was also allowed by the Tribunal vide order dated 08.11.2018 and no information is forthcoming as to whether the said order is questioned before any Court of law. In this context, it may be appropriate and apposite to refer to the observations made by the Waqf Tribunal in the order, dated 08.11.2018 in IA.No.182 of 2018. The said application was also allowed by the Tribunal vide order dated 08.11.2018 and no information is forthcoming as to whether the said order is questioned before any Court of law. In this context, it may be appropriate and apposite to refer to the observations made by the Waqf Tribunal in the order, dated 08.11.2018 in IA.No.182 of 2018. At paragraph No.6 of the said order, the Waqf Tribunal held in the following manner: “..On considering the entire material and the entries in the official Gazette that was published by the Wakf Board under Section 5 of Wakf Act, 1954, I have no hesitation to hold that the suit property is not notified as Wakf property in the Official Gazette and in such a case the claim of the plaintiffs that the suit property is Wakf property is not tenable under law and their claim for cancellation of the sale deed executed by Defendant No.2 in favour of Defendant No.3 without seeking a declaration that the suit property is a Wakf property is also not maintainable and I feel that there is no cause of action for filing the suit by the Plaintiffs. From the aforesaid discussion, I have no hesitation to hold that the plaint filed by the plaintiffs does not disclose a cause of action as contemplated under Order VII Rule 11(a) of CPC and allegations in the plaint are vexatious and meritless and not disclosing a clear right or material to sue. Hence, the plaint is liable to be rejected. Accordingly, this point is answered.” 12. In the considered opinion of this Court, so long as the above referred findings continue to be on record, it is not open for the Waqf Board to contend that the subject property is a waqf property. Therefore, the contentions contra advanced by the learned Senior Counsel, Sri P. Veera Reddy, deserve to be rejected and are accordingly rejected. In these circumstances, this Court has absolutely no scintilla of hesitation to hold that there are no merits in the present writ appeals. 13. For the aforesaid reasons, the Writ Appeals are dismissed. However, this order will not preclude the State Waqf Board to avail the remedies that are open, in accordance with law. There shall be no order as to costs. Miscellaneous petitions pending if any, shall stand closed.