*HON’BLE MR. ANIL R.DAVE, THE CHIEF JUSTICE AND HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY +WRIT APPEAL Nos.1380,1381,1485 of 2000 & 78 of 2002 % 09-9-2009 + WRIT APPEAL No.1380 of 2000: # M/s. Mothukur and Velgodu Villages Mosques, reptd., by its Muthavallia-Smt.Parveen Banu, D/o. S.A.Siddiqui, 28 yrs, Muthavallia, Velugodu Village and Mandal, Kurnool District. Vs. Pandanna @ Gokari (died per L.Rs-respondents 2 and 3) and others.. ! Counsel for the Petitioner: Sri T.S.Praveen Kumar. ^ Counsel for the Respondents: Sri B.Nagi Reddy for R.1 to R.3. Sri Shafath Ahmed Khan for R.4. G.P. for Revenue for R.5 to R.7. < Gist: > Head Note: ? Cases referred: 1. (2005) 9 SCC 223 2. (1994) 2 SCC 445 3. 1988(1) APLJ 228 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE EIGHTH DAY OF SEPTEMBER, TWO THOUSAND NINE HON’BLE MR. ANIL R.DAVE, THE CHIEF JUSTICE AND HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT APPEAL Nos.1380,1381,1485 of 2000 and 78 of 2002 (Writ Appeal under Clause 15 of the Letters Patent against common order, dated 9-6-2000 in Writ Petition Nos.1615, 2176 and 3521 of 1997 on the file of this Court) WRIT APPEAL Nos.1380 of 2000: Between: M/s. Mothukur and Velgodu Villages Mosques, reptd., by its Muthavallia-Smt.Parveen Banu, D/o. S.A.Siddiqui, 28 yrs, Muthavallia, Velugodu Village and Mandal, Kurnool District. … Appellant. And: 1. Pandanna @ Gokari (died per L.Rs-respondents 2 and 3). 2. Smt. Moulamma, W/o. late Pandanna, 30 yrs, Velugodu village and Mandal, Kurnool District. 3. Noorjah, D/o.late Pandanna, 25 yrs, -do-. 4. The Secretary, A.P.Wakf Board, Opp. Public Gardens, Hyderabad. 5. The District Collector, Kurnool. 6. Mandal Revenue Officer, Velugodu Mandal, Kurnool District. 7. The District Judge, Kurnool District, Kurnool. … Respondents. Counsel for the Petitioner: Sri T.S.Praveen Kumar. Counsel for the Respondents: Sri B.Nagi Reddy for R.1 to R.3. Sri Shafath Ahmed Khan for R.4. G.P. for Revenue for R.5 to R.7. This Court made the following: COMMON JUDGMENT: (per C.V.Nagarjuna Reddy, J.,) This batch of Writ Appeals arise out of common order dated 9-6-2000 in Writ Petition Nos.1615, 2176 and 3521 of 1997 passed by the learned single Judge. While Writ Appeal Nos.1380, 1381 of 2000 and 78 of 2002 have been filed by the Muthukur and Veligodu Villages Mosques, (for short “the Mosques”), represented by their Mutawalli; Writ Appeal No.1485 of 2000 has been filed by the petitioners in Writ Petition No.2176 of 1997. For convenience, the parties are referred to as they are arrayed in the Writ Petitions. The facts are briefly summarized hereunder: Certain properties, which belong to the Moques have been in occupation of the petitioners. Proceedings were initiated under the provisions of Section 36-B of the Wakf Act, 1954 (for short “the Act”) by the Secretary of A.P. State Wakf Board, Hyderabad (for short “the Board”), by giving requisition to the District Collector, Kurnool, for passing orders of recovery and delivery of possession of the said properties to it. Initially, orders were passed by the District Collector, Kurnool, ordering recovery of possession of the said properties. 18 persons have handed over possession, but the writ petitioners resisted and approached the Civil Court, which remanded the matter to the District Collector, for fresh disposal. Accordingly, the District Collector, considered the objections of the petitioners, afresh, and passed order, dated 15-7-1995, holding that the properties in question belong to the Mosques and were published in the list of Wakf properties, under the provisions of the Act; and that the alienations, purportedly made in favour of the writ petitioners, were without the prior permission of the Board and were consequently void in view of the provisions of Section 36-A of the Act. The District Collector, therefore, directed the Mandal Revenue Officer, Veligodu, to take possession of the properties in the occupation of the writ petitioners. Questioning the said order, two separate appeals, viz., CMA Nos.12 and 13 of 1995, were filed in the District Court, Kurnool. After a detailed hearing of the said appeals, the District Court, by its order, dated 18-12-1996, dismissed the said appeals. Feeling aggrieved by the said order, the petitioners filed three Writ Petitions, viz., W.P.Nos.1615, 2176 and 3521 of 1997, which were disposed of by the learned single Judge by common order, dated 9-6-2000, against which the present appeals have been filed. Before the learned single Judge, the writ petitioners mainly raised two contentions, viz., that the requisition given by the Board to the District Collector, without notice to the transferors as required under Rule 21 of the A.P. Wakf Rules, 1974 (for short “the Rules”), is illegal; and that the Board failed to follow the proper procedure by taking recourse to the provisions of Section 36-B of the Act instead of Section 36-D of the Act. The learned single Judge held that under Rule 21 of the Rules, a notice shall be issued not only to the persons in occupation of the properties, but also to the transferors and, therefore, as admittedly the transferors were not given notices by the Board, the order passed by the District Collector is not sustainable. In view of the said finding, the learned single Judge refrained from going into the other contentions, on merits, raised by the writ petitioners. As already noted, while the Mosques filed three writ appeals, the petitioners in Writ Petition No.2176 of 1997 filed Writ Appeal No.1485 of 2000 partly aggrieved by the failure of the learned single Judge in giving findings on merits on the contentions advanced by them. At the hearing, Sri T.S.Praveen Kumar, learned counsel for appearing for the appellant-Mosques, submitted that the learned single Judge has committed a patent error in interfering with the well considered orders passed by the District Collector and the learned District Judge on the short ground that notices to the transferors were not issued under Rule 21 of the Rules. He submitted that the writ petitioners did not raise this ground at any stage of the proceedings either before the Collector or before the District Judge. The learned counsel submitted that Rule 21 to the extent it envisages notice to the person, who has wrongfully alienated the wakf property in question, runs counter to the provisions of Section 36-B of the Act; and that, therefore, non-issue of notices to the transferors does not vitiate the eviction order passed by the District Collector. Sri B.Nagi Reddy, learned counsel for respondents 1 to 3-writ petitioners, submitted that since Rule 21 is couched in mandatory terms, its violation vitiates the order passed by the District Collector and, therefore, the learned single Judge rightly interfered with the order passed by the District Collector. He further submitted that it is the case of the Mosques and the Board that the writ petitioners are the encroachers and, therefore, on their own admitted case, the provisions of Section 36-D are attracted; and that the Board committed a grievous error in invoking the provisions of Section 36-B of the Act. The learned counsel contended that the learned single Judge ought to have considered this aspect and given a finding thereon. Section 36-A of the Act renders any gift, sale, exchange or hypothecation of any immovable property, which is a wakf property, void unless such gift, sale, exchange or hypothecation is effected with the prior sanction of the Board. Section 36-B envisaged the procedure for recovery of wakf property transferred in contravention of Section 36-A of the Act. It is appropriate to reproduce Section 36-B of the Act to the extent it is relevant for the present context: “ 36.B. Recovery of wakf property transferred in contravention of Sec.36-A:- (1) If the Board is satisfied, after making an inquiry in such manner as may be prescribed, that any immoveable property of a wakf entered as such in the register of wakfs maintained under Sec.26, has been transferred without the previous sanction of the Board in contravention of the provisions of Sec.39-A, it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it. (2) On receipt of a requisition under sub-Section (1), the Collector shall pass an order directing the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order”. In exercise of the powers conferred by Section 67 of the Act, the State Government made “the Rues”. Rule 21 thereof prescribed the procedure for recovery of possession of the property transferred in contravention of Section 36-A of the Act. Undoubtedly, the said Rule envisages notice to the person, who has wrongfully alienated the wakf property in question, in addition to the notice to the person, who unauthorizedly occupied or encroached the wakf property, before the Board issues requisition to the Collector concerned to obtain and deliver possession of the property to it. From the scheme underlying Sections 36-A and 36-B of the Act and Rule 21, it is evident that the Board is required to be satisfied by making necessary enquiry that the property in question was a wakf property and the same was sold without its prior approval. Thereafter, a requisition shall be issued to the Collector concerned for obtaining possession and delivering the same to it. Rule 21 prescribed the procedure for making enquiry. It envisages notice not only to the person in occupation, but also to the transferor. After requisition is given by the Board, the Collector shall issue appropriate order for delivery of possession by the person in occupation. It is, thus, clear that Section 36-B authorizes the rule making authority to prescribe procedure for enquiry by the Board before giving requisition to the Collector for passing eviction order. A careful analysis of these provisions would reveal that there is no conflict between Section 36-B and Rule 21 as regards the persons to whom notices are required to be given. While a notice to the transferor by the Board is provided by the Rule at the pre- requisition stage, no such requirement is envisaged before the Collector before directing the person in occupation to deliver property. Hence, we do not find any conflict between Section 36-B and Rule 21. But the question that remains to be considered is whether the proceedings in question were vitiated on account of absence of notices to the transferors? We may note that the Writ Petitioners failed to raise the ground pertaining to non-compliance of Rule 21 in both rounds of litigation before the District Court. For the first time this ground has been raised in the Writ Petitions. Be that as it may, in our view, such a ground is not available to the Writ Petitioners. The writ petitioners, being the transferees, were given opportunity by the Board and also by the District Collector to explain their stand qua the validity of the sale transactions. It is not their case that they made a request to either of the two authorities to give notice to the transferors to establish that the transactions were not void. If the legal environment in which notice to the transferor is prescribed under Rule 21 is considered in its proper perspective, it looks to us that the said provision to the extent of prescribing notice to the transferor is only an enabling one. With the alienation of the property, the transferor loses his interest therein. Ordinarily, therefore, issue of notice to him does not serve any purpose. Obviously, such a notice is prescribed to enable the Board to gather any information about the nature of transaction, in a given case. Issuance of notice to the transferor, therefore, in our view, cannot be construed as mandatory, unlike in the case of person in occupation, so as to render the requisition issued by the Board and the consequential order passed by the Collector illegal, at the instance of the person in occupation on the ground of absence of notice to the transferor. At any rate, no prejudice is caused to the transferee, who is in occupation of the property, by non-issue of notice to the transferor. If a proper notice is given to the person in occupation, that would constitute sufficient compliance of the fair procedure contemplated under the above-mentioned statutory provisions. Any other interpretation would render the provisions of Sections 36-A and 36-B nugatory. From the perusal of the order under appeal, we find that the learned single Judge has placed reliance on the previous judgment of this Court in K.Mullayya Vs. District Judge, West Godavari[1] to fortify his view that Rule 21 was mandatory. A careful reading of the relevant portion of the judgment extracted in the order under the appeals shows that, that was a case where even the person in occupation of the land was not given notice as required under Rule 21 and that it was only the Mutawalli, who was given the notice. On the said facts, the learned single Judge held that giving notice under Rule 21 is mandatory, as opportunity is required to be given to the person in possession of the property to raise his objections before passing an order of eviction. Therefore, the said judgment is not an authority for the proposition that failure to issue notice to the transferor, as envisaged under Rule 21, renders the order of eviction passed by the District Collector, illegal. Thus, the very premise on which the learned single Judge allowed the Writ Petitions, viz., that the transferors were not given notices before passing the eviction order, cannot be sustained. As the writ petitioners were provided with proper opportunity, and in the light of our findings rendered hereinbefore, we do not find any illegality in the proceedings of the Board and the District Collector. The order of the learned single Judge is, therefore, liable to be set aside. As regards the contention of Sri B.Nagi Reddy, learned counsel for respondents 1 to 3 that Section 36- B has no application, we do not find merit therein. A perusal of the order passed by the District Collector clearly shows that the writ petitioners placed reliance on various sale deeds said to have been executed in their favour and that they derived their purported title from the said sale deeds. Section 36-B is attracted where a person is in possession of the property on the basis of the transfer made without the prior sanction of the Board. Therefore, on the admitted facts of the case, Section 36-B is clearly attracted and we do not find any procedural illegality committed by the District Collector in invoking the provisions of Section 36-B of the Act for passing the orders of eviction. For the above-mentioned reasons, Writ Appeal Nos.1380, 1381 of 2000 and 78 of 2002 are allowed and the impugned order of the learned single Judge is set aside. Writ Appeal No.1485 of 2000 is dismissed. ANIL R. DAVE, CJ., C.V.NAGARJUNA REDDY, J Dt.09-09-2009. Note: L.R. copies to be marked. (BO) MNR [1] 1988(1) APLJ 228