THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE N.RVI SHANKAR W.A.Nos.745 & 868 of 2002; 778 & 885 of 2002; and 729 & 878 of 2002 Date of Order: 21-03-2011 Between: A.P.State Wakf Board rep. by its Chief Executive Officer ..Appellant and 1. B.Gowra Reddy (died per L.Rs.) and others ..Respondents The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE N.RVI SHANKAR W.A.Nos.745 & 868 of 2002; 778 & 885 of 2002; and 729 & 878 of 2002 Common Judgment: (Per Honourable Sri Justice A.Gopal Reddy) 1. These three sets of Writ Appeals by the A.P. State Wakf Board and the State Government are filed assailing the common order passed by the learned single Judge in W.P.No.12275 of 1993, W.P.No.25392 of 1996 and W.P.No.681 of 1997 dated 04-01-2002 allowing the said writ petitions which were filed questioning the notification of the Wakf Board published in Gazette dated 09-02-1989 at Sl.No.2900 at page 225 notifying Ac.28.32 gts. of land in various survey numbers of Meerpet village as wakf property. 2. As the pleas in all the writ appeals are identical, it would be sufficient to note the facts as narrated in W.P.No.12275 of 1993 and they are briefly stated as under: 3. The writ petitioner—B.Gowra Reddy in W.P.No.12275 of 1993 challenged the notification No.6A, dated 09-02-1989 against inclusion of properties owned by him for which occupancy certificate was granted in his favour in the year 1980 to an extent of Ac.17.02 gts. in Sy.Nos.141, 143, 144 and 145 of Meerpet village, Saroornagar Mandal, Rangareddy District. Pending writ petition Gowra Reddy died and his legal representatives were brought on record as per the orders in W.P.M.P. No.5874 of 2000, dated 04-01-2002. He sold some extent of land to third parties by converting it into house plots. The purchasers of the land have filed W.P.No.25392 of 1996 challenging the very same Gazette notification; whereas W.P.No.681 of 1997 was filed by the owners, who have been granted occupancy certificate to the extent of Ac.5.12 gts. of land in Sy.Nos.127 part 128 part and 142 part, challenging the said Gazette notification. 4. It is the version of the petitioners that Ac.17.02 gts. of land was purchased by Gowra Reddy from one late T.Laxmaiah on 17-11- 1972 and since then he was in possession of the property. He was granted occupancy certificate under the provisions of A.P. (T.A.) Inams Abolition Act, 1955 by the Revenue Divisional Officer vide order dated 08-12-1980 and consequently patta certificate was also granted vide patta certificate No.I/4644/80, dated 23-12-1980. When a notice under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (for short “ULC Act”) was issued to him to surrender the excess land, Gowra Reddy made a representation dated 21-03-1984 requesting for exemption of the land under Section 20 (1) (a) of ULC Act as the lands are used for agricultural purpose. On inspection the Special Officer, Competent Authority recommended the case of the petitioner for exemption and accepting the same exemption was granted in G.O.Ms.No.871 Revenue (UC.II) Department, dated 30-03-1984. While so, by the impugned Gazette notification the entire Sy.No.153 (old) and 141 (new) was shown as wakf property. On issuance of such notification, the Managing Committee represented by Masjid Abbas Ali Khan filed O.S.No.1385 of 1992 before the Munsif Magistrate East and North Ranga Reddy for injunction. The plea of petitioners is that in spite of representations made no steps have been taken to delete the land from the list of wakf properties and therefore the notification is liable to be set aside as it was issued without any notice or opportunity to them before issuing the same. 5. The Chief Executive Officer of the Wakf Board—2nd respondent filed counter stating that the mosque is known as “Abbas Ali Khan mosque” and the properties attached to it and bearing Sy.Nos.138, 139 and 153 (old) and new Nos.127, 128, 141, 142, 144 and 145 total Ac.28.32 gts. Are wakf properties which were surveyed by the Commissioner of Wakf appointed by the Government of A.P. under Section 4(3) of the Wakf Act, 1954 and he submitted his report in the year 1964. The said report was got published under Section 5(1) of the Wakf Act, 1954 in A.P. Gazette on 09-02-1989. It is stated that as no objections have been filed within the stipulated period of one year from the notification, the said notification has become final. It is further stated that since the Wakf Board has not received any notice either from the RDO or from the Government or urban land ceiling authority before taking any action, the patta granted in favour of the petitioner is illegal. 6. The 3rd respondent also filed counter stating that the writ petitioners were never in possession either before or after issuance of certificate by the Revenue Divisional Officer and the property was endowed for Wakf and it vested in the Wakf Board in the year 1967 itself and there is no need of any notice to the petitioners to know about the same. It is also stated that the sale deeds and patta certificates are manipulated suppressing the fact that the properties are wakf properties since 1968. It is also pleaded that the Government while granting exemption in G.O.Ms.No.871 Revenue (UL II) Department dated 30-05-1984 restrained the petitioner from altering the nature of the land and prohibited him from making any construction over it or alienating the same. The said property was endowed by the owner of the land—Abbas Ali Khan to the Wakf Board in the year 1968 and it was included in the list of wakf properties and the same was published in Gazette on 09-02-1989 along with other properties endowed by the same person. 7. Sri N.Subba Reddy the learned senior counsel for Mr.Mir Masood Khan appearing for the Wakf Board contends that writ petitions which were filed after a long lapse of 12 to 15 years after the property was dedicated as wakf property are liable to be dismissed on the ground of laches. Once the properties are notified as wakf, goes his contention, any dispute, question or other matter relating to the wakf should be agitated before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 even if an order has been passed prior to the commencement of the Wakf Act, 1995 as held by the Supreme Court in BOARD OF WAKF, WEST BENGAL v. ANIS FATMA BEGUM AND ANOTHER[1] and the Madras High Court in SALAM KHAN v. T.N.WAKF BOARD, CHENNAI[2]. He therefore pointed out that the impugned order passed by the learned single Judge should be set aside granting liberty to the parties to agitate the matter before the Wakf Tribunal. It is further contended by him that even the jurisdictional questions can be considered by the authority i.e. the Wakf Tribunal in this case, while deciding the question whether a proceeding was validly initiated or not as held by the Supreme Court in COLLECTOR v. P.MANGAMMA[3]. He says that once the Government have appointed Wakf Commissioner by G.O.Ms.No.2199 dated 27-12-1967 for the purpose of making surveys of wakf properties the plea taken by the writ petitioners that no Gazette notification was issued before directing the Survey Commissioner to conduct enquiry without following the provisions of sub-section (4) of Section 6 and sub-section (2) of Section 5 has no merit. His further contention is that whether any opportunity is given before publication of Gazette to the persons who are claiming to be owners are all matters which can be decided by the Wakf Tribunal and the learned Judge ought not to have given a finding that there is no material to declare the property as wakf property and the writ proceeding is not proper remedy and therefore the impugned order is liable to be set aside. The learned senior counsel alternatively pleaded to remit the matter to the Wakf Commissioner so that the Wakf Board can place all the material for issuing fresh notification. 8. The learned Government Pleader for Social Welfare appearing for the appellants in W.A.Nos.868, 878 and 885 of 2002 while adopting the above submissions contends that the entire property is recorded as wakf property and Wakf Commissioner was appointed under the Act who after due survey recommended for publication of the same and it will became wakf property and therefore the matters have to be agitated before the Wakf Tribunal. 9. Per contra, Sri D.Prakash Reddy the learned senior counsel appearing for the respondents (writ petitioners) contends that the question which fell for consideration before the Supreme Court in BOARD OF WAKF, WEST BENGAL (1 supra) was whether the civil Court will have jurisdiction to entertain the matters pertaining to wakf. Admittedly in the above case the dispute relates to wakf and once the property found to be wakf property as defined under Section 3(r) then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal. His further contention is that when the petitioners have challenged the notification which was issued in violation of statutory provisions contained under Section 4 of the Wakf Act 1954 that too without issuing any notice to the petitioners who were declared as owners by granting occupancy certificates, the learned Judge rightly allowed the writ petitions and his order does not call for any interference. We now proceed to examine these contentions. 10. In SALAM KHAN’s case (2 supra) a Division Bench of the Madras High Court speaking through Markandey Katju, Chief Justice (as he then was) held that the word ‘Wakf’ has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal. Even if an order has been passed prior to the commencement of the Wakf Act, 1995, or a dispute, question or matter has arisen before the commencement of the said Act, the Wakf Tribunal can adjudicate such issues or questions or the correctness of such an order and relegated the parties to the Tribunal. The facts in the above case and the circumstances in which the parties were relegated to the Tribunal are not forthcoming from the judgment. 11. In BOARD OF WAKF, WEST BENGAL (1 supra) the dispute pertains to the Wakf estate which was created by a Registered Deed of Wakf. By the said Wakf Deed the property was dedicated partly for the benefit of the Wakifa, her family and descendants and partly for pious and religious purposes. In order to give effect to the object of the Wakf, the property had been divided into two portions having 75% share for Wakf-al-al-aulad and 25% share for pious and religious purposes. A dispute broke out regarding demarcation. The suit came to be filed in the year 1999 after the Wakf Act, 1995 came into force and the two issues in the suit were whether division or earmarking of the property in two distinctive parts, one for Wakf-al-al-aulad and the remaining portion for pious and religious purposes is correct and has been made in consonance with the provisions of the Wakf Deed; and whether the Wakf Act, 1995 is applicable for the portion of the said property divided and earmarked for Wakf-al-al-aulad. Since the dispute in the said case relates to a Wakf, the Supreme Court held once the property is found to be a Wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal. The Supreme Court further clarified that the party can approach the Wakf Tribunal, even if no order has been passed under the Act against which he/she is aggrieved and that Sections 83(1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. It also held that Sections 83(1) and 84 of the Act are independent provisions and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Since the matter fell under the purview of the Wakf Act it was held only the Wakf Tribunal has jurisdiction in the matter and not the Civil Court. 12. The facts in the above two cases are entirely different to the issues involved in the present case. 13. In SAYYED ALI v. A.P.WAKF BOARD, HYDERABAD[4] it was held that the Tahsildar while making an enquiry for the purpose of grant of patta under the A.P. (Andhra Area) Inams (Abolition and conversion into Ryotwari) Act, 1956 has to find out whether the inam land was held by the Dargah, but was not required to enquire into and adjudicate upon the character of the Wakf property mentioned in the list of Wakfs published in the official gazette under sub-section (2) of Section 5 of the Wakf Act, as the dispute in that regard as to its character could only be decided in the manner provided in Section 6 of the Wakf Act. Assuming that the Wakf property was not found to be held by the Dargah under Section 3 of the Inams Act, it was not open to the Tahsildar to adjudicate upon the character of the Wakf property as the same was a grant by way of service inam for purposes recognized by the Muslim law as pious, religious or charitable which constituted the property as Wakf. Thus the finding of the Tahsildar in that case that the property was not Wakf was held to be wholly erroneous and beyond his jurisdiction. 14. In the present case, we are not concerned with the validity of the occupancy certificate/certificates granted in favour of the petitioners in W.P.Nos.12275 of 1993 and 681 of 1997 and we are only concerned with the validity of the notification issued under the Wakf Act. Therefore the above judgment is misplaced to the facts of the present case. 15. In the case on hand notification was issued under the Wakf Act, 1954. Sections 4 to 6 of the Wakf Act, 1954 deal with preliminary survey, publication of list of wakfs and disputes regarding the wakf property. The said Sections were amended by Central Act 69/84 but were not brought into force except Section 66(g) and 66(h). The word ‘Commissioner’ has been substituted by Wakf Amendment Act 69/84 and various other provisions of the Act including Sections 4 to 6 which have been reproduced in the judgment. The said fact appears to have been not brought to the notice of the learned single Judge. The word “Commissioner” has been defined under Section 3(d) of the Wakf Act, 1954 which reads as under: “Commissioner” means a Commissioner of Wakfs appointed under Section 4 and including any additional or assistant commissioner of wakfs. 16. From the scheme for conducting preliminary survey, the State Government, by notification in the official Gazette, appoints for the State a Commissioner of Wakfs and as many as additional or assistant commissioners of Wakfs as may be necessary for the purpose of making a survey of wakf properties existing in the State at the date of the commencement of the Act. All additional and assistant commissioners of wakfs so appointed have to perform their functions under the general supervision and control of the Commissioner of Wakfs appointed for the State. For conducting such survey it is mandatory to hold an enquiry before publication of list of wakfs and submitting report to the Government under sub-section (3) of Section 4. On receipt of such report, the State Government shall forward a copy of the same to the Wakf Board. Thereafter the Board shall examine the report forwarded to it and publish the list of wakfs existing in the State containing such particulars as may be prescribed. Section 6 of the Wakf Act, 1954 which relates to adjudication of disputes regarding wakfs so far as is material reads thus: “6. (1) If any question arises whether a particular property specified as wakf property in a list of wakfs published under sub- section (2) of Section 5 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 civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be final: Provided that no such suit shall be entertained by the civil court after the expiry of one year from the date of the publication of the list of wakfs under sub-section (2) of Section 5. * * * * (4) The list of wakfs published under sub-section (2) of Section 5 shall, unless it is modified in pursuance of a decision of the civil court under sub-section (1), be final and conclusive.” Rule 3 of the Andhra Pradesh Wakf Rules, 1956 specifies that the report of the Commissioner shall in addition to the particulars specified in clauses (a) to (e) of sub-section (3) of section 4, contain the following particulars, viz., (a) The details of immovable property showing the village or town where situate, along with municipal or survey number, area, assessment or jodi and description of the tenure on which held and the estimate value thereof; (b) x x x x x (c) Encumbrances, if any, on the properties mentioned in clauses (a) and (b) of this rule; (d) the manner in which the wakf is administered at resent, that is whether under a scheme settled by a Court of law or by a registered document or established custom or usage; and (e) Title deeds pertaining to the wakf property and name of the person or persons in possession thereof. Rule 3-A of the Andhra Pradesh Wakf Rules, 1956 deals with the powers of the Commissioner while making inquiries under Section 4(3) of the Wakf Act, 1954. 17. Admittedly in the present case notification was published on 09-02-1989 as required under sub-section (2) of Section 5. On such publication of notification the interested parties can institute a suit in the jurisdictional civil court which is competent to decide the dispute which was not ousted as on the date of publication of notification. In the case on hand petitioners who are third parties and not interested persons filed W.P.No.12275 of 1993 prior to coming into force of the Wakf Act, 1995 which repeals Wakf Act, 1954. 18. The three judge bench of the Supreme Court in BOARD OF MUSLIM WAKFS v. RADHA KISHAN[5] in para-25 held the very heading of Chapter II and the caption to Section 4 no doubt suggest that the Commissioner makes only a preliminary survey regarding existing wakfs and the list of wakfs prepared by him is published by the Board and neither the Commissioner nor the Board is required to make any enquiry regarding the character of the property, that is to say the making of survey is only an administrative act and not a quasi-judicial Act. It was further held that if Sections 4, 5 and 6 are parts of an integrated scheme, as asserted, then it follows as a necessary corollary that the enquiry envisaged by sub-sections (1) and (3) of Section 4 must cover the field defined by sub-section (1) of Section 6 which clearly envisages that the enquiry by the Commissioner is not confined to the question as to whether a particular wakf is Shia wakf or Sunni wakf and it may also embrace within itself a dispute as to whether a wakf exists. It was further held that this is a construction which sub-section (1) of Section 4 must, in its context and setting, bear and any other construction would, indeed, make the Act unworkable. After considering Sections 4 to 6 in para-33 it was held that the answer to these questions must turn on the true meaning and construction of the word “therein” in the expression “any person interested therein” appearing in sub-section (1) of Section 6. It then held that in order to understand the meaning of the word “therein” in our view, it is necessary to refer to the preceding words ‘the Board or the mutawalli of the wakf’. The word ‘therein’ must necessarily refer to the “wakf” which immediately precedes it. It cannot refer to the “wakf property”. Sub-section (1) of Section 6 enumerates the persons who can file suits and also the questions in respect of which such suits can be filed. In enumerating the persons who are empowered to file suits under this provision, only the Board, the mutawalli of the wakf and “any person interested therein”, thereby necessarily meaning any person interested in the wakf, are listed. It should be borne in mind that the Act deals with wakfs, its institutions and its properties. It would, therefore, be logical and reasonable to infer that its provisions empower only those who are interested in the wakfs to institute suits. While considering the effect of Sections 4 to 6 of the Wakf Act, 1954 it was held that the notification issued under sub-section (1) of Section 6 of the Wakf Act, 1954 making list as final and conclusive between the Wakf Board and the Muttawalli and the persons interested in the Wakf and not to extend its scope to the persons who are not persons interested in the Wakf. It was therefore held that the right, title and interest of a stranger, a non- Muslim to the Wakf in a property cannot be put in jeopardy merely because that property is included in the list of Wakfs and such a person is not required to file a suit for a declaration of his title within a period of one year. It was also held that the special rule of limitation laid down in proviso to sub-section (1) of Section 6 is not applicable to him. In other words it was held that the list published by the Board of Wakfs under sub-section (2) of Section 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity for filing such suit arises. 19. The same view has been reiterated by the Supreme Court in PUNJAB WAKF BOARD v. GRAM PANCHAYAT[6], wherein after referring to the explanation added below to sub-section (1) of Section 6 of the Wakf Act, 1954, by Central Act 69 of 1984 (which was not enforced by issuing notification) it was held obviously, the intention of Parliament was to say 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). 20. This Court in P.RAMA RAO v. HIGH COURT OF A.P.[7] while upholding the circular issued by the High Court that after the constitution of the Tribunal all the civil courts in the State not to entertain the suits relating to Wakf property and return all the plaints to present them before the Wakf Tribunal held suits filed prior to the constitution of the Wakf Tribunal are maintainable and the jurisdiction of the civil court is not ousted in respect of said suits in the light of Section 85 of the Wakf Act. 21. The Supreme Court in RAMESH GOBINDRAM (DEAD) BY L.Rs. v. SUGRA HUMAYN MIRZA WAKF[8] considering the jurisdiction of the Wakf Tribunal to order eviction of the tenants which was answered in the affirmative by the Wakf Tribunal and confirmed by the High Court following its earlier judgments, held that the jurisdiction of the civil Court is barred in respect of disputes that concern