* THE HON'BLE THE ACTING CHIEF JUSTICE BILAL NAZKI AND * THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION NOs. 313, 597, 21854 AND 24513 OF 2005 W.P. No. 313 of 2005: % 13.12.2007 # M. Govinda Rao, S/o Suryanarayana, Hindu, aged about 41 years, R/o. D. No. 70-2-39, Flat No. 303, Preetham Nivas, Patamata, Vijayawada, Krishna District and two others. ….. Petitioners and $ A.P. State Wakf Board, rep., by its Principal Secretary, Hyderabad. ! Counsel for the petitioners: Sri P.R. Prasad ^ Counsel for the Respondent: Sri Abdul Muqeeth Qureshi < Gist: >Head Note ? [1] 2000(5) ALT 626 2 1999(5) ALD 324 3 2001(4) ALD 69 (SC) 4 (1990)4 SCC 356 5 (2007)2 SCC 181 6 AIR 1969 SC 707 7 AIR 1967 SC 295 8 1983(2) SCC 402 9 1999(6) SCC 418 10 2006(4) SCC 327 11 1972(2) SCC 744 12 2004(2) SCC 590 13 AIR 1998 SC 972 14 AIR 1966 SC 828 15 2000(7) SCC 529 16 (1999) 6 SCC 237 17 2003(4) SCC 557 18 2004(4) SCC 281 19 (1980)4 SCC 379 20 2007(4) SCC 54 21 (1994) 2 SCC 481 22 (2002) 1 SCC 100 23 AIR 1955 S.C.425 24 AIR 1987 SC 2235 25 AIR 1989 SC 1972 THE HON’BLE THE ACTING CHIEFJUSTICE BILAL NAZKI AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NOs. 313, 597, 21854 AND 24513 OF 2005 COMMON ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) “Save valuable Wakf lands from being sold for a song” is a cry in anguish from Mirza Yaseen Ali Baig who has filed W.P. No. 21854 of 2005 in public interest to have G.O.Ms. No. 22, Minorities Welfare (Wakf.I) Department, dated 18.10.2004, quashed. He also seeks to have the sale deeds, executed in favour of respondents 6 to 11 pursuant to G.O.Ms.No.22 dated 18.10.2004, set aside contending that crores of rupees worth Wakf property had been alienated to them for a pittance. The petitioner’s case, in short, is that the Government Qazi had sought permission for sale of Wakf lands admeasuring Ac.39.16 cts on the specious plea of safeguarding it from illegal encroachment, that while these Wakf lands would have fetched between 30 to 40 lakhs per acre the sale consideration was fixed at an abysmally low price of Rs.6 lakhs per acre and that G.O.Ms. No. 22, dated 18.10.2004 was issued by the Government according sanction for its sale to respondents 6 to 11 though Wakf lands could be sold only by way of public auction after following the procedure prescribed under Section 51 of the Wakf Act. Petitioner would contend that the impugned G.O. was not only malicious, as it was taken with a view to favour respondents 6 to 11, but was also detrimental to the interest of the public as well as to the Wakf. Facts, in brief, are that on the proposals of the Qazi for the sale of Wakf lands, of an extent of Ac.39.16 cts, in Survey Nos. 201 to 203/2 of Nidamanuru Village, Krishna District to the tenants, the President and Vice-President of the Krishna District Wakf Committee, after inspecting the lands along with the Inspector and Auditor of Wakfs, submitted a report to the District Wakf Committee which, in its meeting held on 10.06.1994, unanimously resolved to refer the proposal to the A.P. State Wakf Board, for its permission and sanction, on the ground that taking possession of these lands from the tenants would involve endless litigation. The President, Krishna District Wakf Committee, vide letter dated 13.06.1994, requested the Secretary, A.P. State Wakf Board to grant permission and sanction for the sale of these land in favour of the tenants at government rates. The Special Officer, A.P. State Wakf Board, vide letter dated 08.08.1994, informed the Government that vacant lands available in towns and cities were the target of encroachment by land grabbers, that once Wakf lands were encroached upon it was very difficult to get the land back due to various reasons and, keeping in view all these facts, it was felt that it would be safe to sell the vacant lands and deposit the sale proceeds in any nationalized bank in the joint account of the Secretary, Wakf Board and the Qazi concerned and to advice the Qazi to purchase an alternate property from out of the sale proceeds. The Special Officer requested the government to grant permission to sell the Qazi Inam Wakf lands to the tenants at the market value, as furnished by the registration department, plus 25%. Thereafter, the matter remained in hibernation for six long years till the Government, vide memo dated 22.03.2000, informed the Chief Executive Officer, A.P. State Wakf Board that their proposal dated 08.08.1994 had been examined and it was tentatively decided to sell the Wakf land, of Acres 39.16 cts, in Survey Nos. 201, 201/A, 202/2, 203/1 and 203/2 of Nidamanuru Village, Krishna District, to the tenants. The Chief Executive Officer was requested to follow the procedure laid down in the Wakf Act for sale of Wakf lands ie., publication in the gazette, calling objections etc and that proposals in full shape, for according necessary permission, be submitted thereafter. A notification was published in the A.P. Gazette dated 27.04.2000 giving notice to the general public, under Section 51(2) of the Wakf Act, (hereinafter referred to as the Act), read with Rule 12(2) of the A.P. Wakf Rules,(hereinafter referred to as the Rules), inviting claims, objections and suggestions, for the sale of these lands. Thereafter G.O.Ms. No. 22 dated 18.10.2004 was issued wherein it was noted that the Chief Executive Officer, A.P. State Wakf Board had sent proposals on 05.06.2000 seeking permission for the sale of the Wakf lands to the tenants as a special case, in relaxation of Section 51 of the Act, as public auction was not feasible due to the long standing possession of the tenants, that the Collector, Krishna, in his letter dated 17.08.2004, had informed that the prevailing market value of the subject Wakf lands ranged from rupees five lakhs to six lakhs per acre and that the Government, in exercise of the powers conferred under Section 97 and in relaxation of Section 51 of the Act, had accorded permission to the Chief Executive Officer, A.P. State Wakf Board for the sale of Kondapalli Qazi service Inam lands of an extent of Ac.39.16 cts at Rs.6 lakhs per acre to the six tenants mentioned in the G.O, subject to the conditions that payment should be made in one lumpsum or in three equal instalments, that registration of the lands should be effected only after receipt of the total sale consideration and that the sale proceeds should be deposited in a nationalised bank in the name of the Wakf institution. Respondents 6 to 11 deposited Rs.234.96 lakhs representing the entire sale consideration and, pursuant thereto, the A.P. State Wakf Board executed sale deeds in their favour on 29.12.2004. The Legislative Committee on Minorities Welfare, while informing the Government that subsequent independent local enquiries revealed that the land value in and around Vijayawada town had increased manifold, requested that G.O.Ms. No. 22 dated 18.10.2004 be cancelled as the price fixed for the sale of wakf lands was very low. Keeping in view these facts, and the interest of the Wakf, the Government issued orders in G.O.Rt. No. 8, Minorities Welfare (Wakf.I), Department, dated 05.01.2005, cancelling the orders issued earlier in G.O.Ms. No. 22 dated 18.10.2004. G.O.Rt. No. 8 dated 05.01.2005 is the subject matter of challenge, in W.P. Nos. 313, 597 and 24513 of 2005, by respondents 6 to 11 in W.P.No.21854 of 2005 and others who claim to be the tenants of these Wakf lands. While respondents 6 to 8 in W.P. No. 21854 of 2005 are the petitioners in W.P. No. 313 of 2005, respondents 9 to 11 in W.P. No. 21854 of 2005 are the petitioners in W.P. No. 597 of 2005. The sole petitioner in W.P. No. 24513 of 2005 claims that his forefathers are the tenants of 6.50 Acres of land, in Sy. No. 201 of Nidamanur village, for the past more than 50 years. Parties shall hereinafter be referred to as they are arrayed in W.P. No. 21854 of 2005. In his counter affidavit, the Chief Executive Officer of the A.P. State Wakf Board, states that the Government, after conducting independent enquiries and ascertaining that the price fixed in G.O.Ms. No. 22 dated 18.10.2004 was low, had issued G.O.Rt. No. 8 dated 05.01.2005 and that the wakf lands, subject matter of these writ petitions, together with other lands in different survey numbers, are notified Wakfs published in the A.P. Gazette Part-II dated 28.06.1962. While denying the claim of respondents 6 to 11, of their being in possession for more than 40 years, it is stated that neither was any lease granted by the Board in their favour nor was any sanction accorded under Section 56 of the Act, that Wakf lands could not be alienated in relaxation of Section 51 of the Act, that after enquiry the Inspector and Auditor of Wakfs, in his report dated 04.04.1994, had stated that the tenants were not showing any interest to spend amounts to make the lands fit for cultivation, that the lands were not fetching proper income and that the sale of these Wakf lands, contrary to the provisions of the Act, was void. Sri V.R. Avula, learned counsel for the petitioner in W.P. No. 21854 of 2005, would rely on Managing Committee, Wakf, Jamia Masjid, Jaggayyapet Vs. State of Andhra Pradesh[1] to submit that the power conferred on the Government, under Section 97 of the Act, could be exercised only to further the provisions of the Act and not to give directions contrary thereto. He would contend that sale of Wakf lands, without adhering to the mandatory provisions of Section 51 of the Act, was illegal. Sri E. Manohar, learned Senior Counsel appearing on behalf of Respondents 9 to 11, would contend that G.O.Rt. No. 8 dated 05.01.2005 was liable to be quashed on the following grounds: (1) once action is completed pursuant to G.O.Ms. No. 22 dated 18.10.2004, and the order implemented by registration of the sale deeds, the Government had no authority to cancel either the G.O. or the sale deeds; (2) Subsequent rise in the price of lands would not justify an earlier sale being set aside; (3) the reasons for cancellation was wholly unjustified; (4) the lands, being Qazi Service Inam lands, was burdened with service and was not Wakf property; (5) the impugned order was issued without complying with principles of natural justice; (6) the market value of the lands in 1994 was around Rs.70,000/- per acre far less than the price at which the lands were sold to the respondent-tenants; (7) G.O.Rt. No. 8 dated 05.01.2005 was issued without application of mind to the contents of G.O.Ms. No. 22 dated 18.10.2004; (8) Since prior sanction of the Government had been obtained, and directions had been issued to the Wakf Board under Section 97 of the Act, these lands, even if it were held to be Wakf lands, could be sold under Rule 12; and (9) while public auction was the norm, in cases where the lands were in the possession of the tenants for the past several decades, their sale, without the process of an auction, was justified. Reliance is placed by the Learned Senior Counsel on a Division Bench judgment of this Court in Hitakarini Samaj Vs. State of Andhra Pradesh[2] as confirmed by the Supreme Court in Hitakarini Samaj Vs. State of A.P.[3]. Sri P.R. Prasad, learned Counsel appearing for Respondents 6 to 8, would submit that, since sale deeds had already been executed on 29.12.2004, the relief sought for in W.P. No. 21854 of 2005 cannot be granted, that the Government had the power under Sections 97 and 99(2)(b) of the Act, to issue binding directions to the Wakf Board, that respondents 6 to 11 as statutory tenants are entitled to remain in possession and to claim statutory protection under Sections 15 and 18 of the A.P. (Andhra Area) Tenancy Act, and, as the dispute relates to sale of lands at low prices, a direction could be given to the official respondents to permit respondents 6 to 11 to pay the differential amount within a specified period, in easy instalments. Learned Government Pleader would submit that immovable Wakf property dedicated for religious or charitable purposes, cannot be sold without complying with the mandatory provisions of the Act or at prices far below the market value. ARE THE LANDS, WHICH WERE SOLD PURSUANT TO G.O.Ms. No. 22 DATED 18.10.2004, WAKF PROPERTY OR NOT? As is evident, from the counter affidavit filed by the Chief Executive Officer of the A.P. State Wakf Board, the lands, subject matter of sale under G.O.Ms. No. 22 dated 18.10.2004, are included in the list of wakfs published in the A.P. Gazette on 28.6.1962. Section 3(g) of the Act defines “list of Wakfs” to mean the list of Wakfs published under sub-section (2) of Section 5. Section 3(r) defines “Wakf” to mean the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by muslim law as pious, religious or charitable. Section 5 relates to publication in the Official Gazette of the list of Wakfs in the State, whether in existence at the commencement of the Act or coming into existence thereafter. Under Section 6(4) the list of Wakfs shall, unless it is modified pursuant to a decision of the Tribunal, be final and conclusive. Section 7 confers powers on the Tribunal to determine disputes regarding Wakfs. Since inclusion of these lands in the list of Wakfs, published in the A.P. Gazette dated 28.6.1962, is final and conclusive, these lands are undoubtedly immoveable Wakf property. The contention to the contrary must, therefore, fail. Section 51 of the Act reads as under: 51 ALIENATION OF WAKF PROPERTY WITHOUT SANCTION OF BOARD TO BE VOID “(1) Notwithstanding anything contained in the wakf deed, any gift, sale or exchange, mortgage of any immovable property which is wakf property, shall be void unless such gift, sale, exchange or mortgage is effected with the prior sanction of the Board : Provided that no mosque, dargah or khangah shall be gifted, sold, exchanged or mortgaged except in accordance with any law for the time being in force. (2) The Board may, after publishing in the Official Gazette, the particulars relating to the transaction referred to in sub-section (1) and inviting any objections and suggestions with respect thereto and considering all objections and suggestions, if any, that may be received by it from the concerned mutawalli or any other person interested in the wakf, accord sanction to such transaction if it is of the opinion that such transaction is- (i) necessary or beneficial to the wakf; (ii) consistent with the objects of the wakf; (iii) the consideration thereof is reasonable and adequate: Provided that the sale of any property sanctioned by the Board shall be effected by public auction and shall be subject to confirmation by the Board within such time as may be prescribed: Provided further that the Tribunal may, on the application of the aggrieved mutawalli or other person, for reasons to be recorded by it in writing permit such sale to be made otherwise than by public auction, if it is of the opinion that it is necessary so to do in the interest of the wakf. (3) The utilisation or investment of the amount realised by the sale or exchange or mortgage of any property shall be made by the mutawalli subject to the approval of the Board, and where any amount has been raised by mortgage of any such property, the mutawalli or other person shall make repayment of the mortgage-debt and obtain a discharge of the mortgage-debt from the mortgage within such reasonable time as the Board may specify. (4) Every approval given by the Board under sub-section (3) shall be communicated to the mutawalli and shall also be published in the manner prescribed. (5) The mutawalli or any other person having an interest in the wakf who is aggrieved by the decision given under sub-section (3), may, within ninety days from the date of communication to him of such decision or the publication of the decision, as the case may be, prefer an appeal to the Tribunal against such decision and thereupon, the Tribunal may, after giving the appellant and the Board, a reasonable opportunity of being heard, confirm, modify or set aside such decision. Rule 12 (1) of the A.P. Wakf Rules reads thus: “Conditions and restrictions subject to which the Board may transfer, purchase or alienate Wakf property under Sections 51 and 53 of the Act:- (1) Any purchase, sale, exchange or transfer of Wakf property by the Board shall be subject to prior approval of the State Government and adherence to the directions issued under Section 97 of the Act. Provided that the sale of any property sanctioned by the Board with prior approval of Government shall be effected by public confirmation by Board within one month from the date of aucton: Provided further that the sale proceeds or the consideration realized by way of open auction is credited to the institution account and utilized for the purpose for which the Wakf was created, with the prior approval of the Board. FORMATION OF OPINION: FACTORS TO BE TAKEN INTO CONSIDERATION: Sale of immovable Wakf property can be effected, under Section 51 of the Act, only with the prior sanction of the A.P. State Wakf Board. The Board is required under Section 51(2) to form its opinion that the sale transaction is (i) necessary or beneficial to the wakf; (ii) consistent with the objects of the wakf; and (iii) the sale consideration is reasonable and adequate. In the formation of opinion regard must be had to the factors enumerated in the Section together with all other factors relevant for exercise of that power. Formation of opinion must be based on objective considerations. (India Cement Ltd. Vs. Union of India[4], Rajesh Kumar Vs. Dy. CIT[5]). There must exist circumstances which, in the opinion of the Authority, suggest what has been set out in the Section. Existence of the circumstances mentioned in the Section is a condition precedent for formation of the required opinion and, if the existence of those conditions is challenged, Courts are entitled to examine whether those circumstances existed when the order was made. (Rohtas Industries Ltd Vs. S.D. Agarwal[6]). If it is shown that the circumstances do not exist, or that they are such that it is impossible for any one to form an opinion therefrom, the opinion can be challenged on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the Statute. (Barium Chemicals Ltd. Vs. Company Law Board[7]). SALE OF WAKF LANDS CAN BE MADE ONLY BY WAY OF PUBLIC AUCTION: Under Section 51(2), even on sanction being accorded by the Board after formation of the requisite opinion, the immovable property can be sold only by public auction. The Sale has also to be confirmed by the Wakf Board within one month from the date of public auction as stipulated under the proviso to Section 51(2) read with Rule 12 (1) of the Rules. RULES CANNOT TRAVEL BEYOND THE SCOPE OF THE PARENT ACT: An additional safeguard is provided under Rule 12 (1) in that prior sanction of the government is required for the sale of the Wakf property. Rule 12 (1) cannot be read in isolation and must be construed harmoniously with Section 51 of the Act, for it is a well settled principle of interpretation of statutes that the conferment of rule- making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. (State of Karnataka Vs. H. Ganesh Kamath[8]). Rules can neither be framed as not to carry out the purposes of the Act not can it be in conflict therewith. (Laghu Udyog Bharati Vs. Union of India[9]). A rule must also conform to the provisions of other Acts. Subordinate legislation cannot violate plenary legislation. (Kerala Samsthana Chethu Thozhilali Union Vs. State of Kerala[10]). A protection given by the statute cannot be nullified by rules and regulations authorised by the statute itself. (Management of D.T.U. Vs. Shri B.B.L. Hajelay[11]). When Rule 12(1) is so read in conjunction with Section 51, sale of Wakf property by the Wakf Board being subject to the prior sanction of the Government would be a statutory restriction in addition to those mandated under Section 51 of the Act. POWER TO RELAX THE RIGOUR OF SECTION 51 FOR SALE OF WAKF LANDS OTHERWISE THAN BY PUBLIC AUCTION IS CONFERRED ONLY ON THE WAKF TRIBUNAL AND NOT ON THE WAKF BOARD OR THE GOVERNMENT: Neither the Wakf Board nor the Government have been conferred the power to relax the riguor of Section 51 of the Act and to sell immovable Wakf property otherwise than by public auction. It is only the Wakf Tribunal, as constituted under Section 83(1) of the Act, which is empowered under the second proviso to Section 51(2) to grant such permission. The power of the Tribunal to accord such permission is also not unfettered but is circumscribed by the requirement of recording reasons and formation of the opinion that permission to sell immovable property, otherwise than by public auction, is necessary in the interest of the wakf. These stringent safeguards, prescribed under the Act and the Rules, emphasize that the interest of the Wakf is paramount and ensure that valuable immovable Wakf properties are not squandered away. As noted hereinabove, among the conditions precedent, for the valid sale of wakf lands under Section 51 of the Act, is the formation of the opinion by the State Wakf Board that the consideration for sale of wakf property is reasonable and adequate. The most effective manner of ensuring compliance of this condition is sale of wakf lands by public auction. Not only would such a mode be transparent it would, by its being held in open public view and gaze, and its being subjected to public scrutiny, also ensure that the best possible price is received on the sale of such lands. The first proviso to Section 51(2) of the Act, which seeks to achieve this salutary public purpose of securing the best price possible on the sale of wakf lands, is mandatory and cannot be dispensed with. In the case on hand, while the procedural requirements prescribed in Section 51(2) of the Act, of publication in the Gazette and inviting objections and suggestions with respect to the sale of immovable Wakf property may have been satisfied, no material has been placed before us to show that the A.P. State Wakf Board had applied its mind and had formed the opinion that sale of these Wakf lands was necessary or beneficial to the wakf, was consistent with the objectives of the wakf and the sale consideration was reasonable and adequate. There is no material on record to show that the Wakf Board had accorded sanction for the sale of these wakf lands. The letter addressed by the Special Officer of the Wakf Board on 08.08.1994 seeking permission of the Government to sell these lands cannot be said to be a sanction which the Wakf Board is empowered, by Section 51(2), to accord. The sale, under G.O.Ms. No 22 dated 18.10.2004, is also in violation of the requirement, under the Act and the Rules, of its being made only by way of public auction and confirmation of such sale to be made by the Wakf Board within 30 days of the auction. I n Hitakarini Samaj2, the Division Bench of this Court had opined:- “…………..The principle is well settled that public property intended to be