*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + WRIT PETITION Nos.20293 & 29360 of 2011 % 29-02-2012 W.P.No.20293 of 2011 # Srinivas Rao Kasbe and 6 others …… Petitioners Versus $ State of Andhra Pradesh, rep. by the Principal Secretary to the Department of Minorities Welfare & Wakf Board and 4 others …..Respondents W.P.No.29360 of 2011 # Gunna Bheemaiah and 4 others …… Petitioners And $ State of Andhra Pradesh, rep. by the Principal Secretary to the Department of Minorities Welfare & Wakf Board and another …..Respondents ! Counsel for the Petitioners: Sri Venkat Reddy Donthi Reddy Counsel for Respondent No.1: GP for Social Welfare Counsel for respondent No.2: Sri Meer Masood Khan Counsel for respondents 3-5: Sri K. Mahipathy Rao <Gist : >Head Note: ? Cases referred: 1. 2002(3) ALT 439 2. 2011 (1) ALD 61 (SC) 3. AIR 1998 Supreme Court 972 IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION Nos.20293 & 29360 of 2011 DATE: 29.02.2012 W.P.No.20293 of 2011 Between: Srinivas Rao Kasbe and 6 others …… Petitioners And State of Andhra Pradesh, rep. by the Principal Secretary to the Department of Minorities Welfare & Wakf Board and 4 others …..Respondents W.P.No.29360 of 2011 Between: Gunna Bheemaiah and 4 others …… Petitioners And State of Andhra Pradesh, rep. by the Principal Secretary to the Department of Minorities Welfare & Wakf Board and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION Nos.20293 & 29360 of 2011 COMMON ORDER : The petitioners in W.P.No.20293 of 2011 filed the same under Article 226 of the Constitution of India seeking writ of certiorari for quashing notification published at Serial No.30908 in supplement to Part II of the Andhra Pradesh Gazette No.36-A dated 04.09.2003 as illegal, arbitrary and violative of principles of natural justice. The said notification notified lands in S.Nos.626, 638, 639 and 640 of Chattanapally village, Farooq Nagar Mandal of Mahaboobnagar District as wakf property. 2) The petitioners in W.P.No.29360 of 2011 filed the same under Article 226 of the Constitution of India seeking writ of Mandamus declaring notification published at Serial No.30982 in Supplement to Part II of Andhra Pradesh Gazette No.36-A, dated 04.09.2003 notifying lands measuring Ac.9-26 guntas in S.Nos.261, 289, 290, 291, 292, 293, 294, 318 and 667 of Yelikatta village, Farooq Nagar Mandal, Mahaboobnagar District as illegal, arbitrary, unconstitutional and violative of principles of natural justice and the Wakf Act, 1995 and to set aside the same. 3) It is contention of the petitioners in W.P.No.20293 of 2011 that the Revenue Divisional Officer, Mahaboobnagar issued order dated 06.06.2009 conferring ownership of rights for Ac.11.06 guntas in S.No.626, Ac.16-09 guntas in S.No.638, Ac.3-06 cents in S.No.639 and Ac.2-05 cents in S.No.640 totalling Ac.32-26 guntas in Chattanpally village in favour of the petitioners declaring shares of the petitioners in that land; and also issued ownership certificates under Section 38-E in Form-II of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (in short, the 1950 Act) read with Rule 5(1) of the Andhra Pradesh (Telangana Area) Protected Tenants (Transfer of Ownership of Lands) Rules, 1973. It is contention of the petitioners that the said lands are private patta lands of Late Ahmad Ali Siddiqui and that late Nadikudi Ramaiah was protected tenant in the said lands and his name was recorded as such in final tenancy register of the village prepared under the 1950 Act and that the petitioners 2 to 7 are the lineal descendants of late Nadikudi Ramaiah who continued to be protected tenants and who acquired right of ownership in the lands. It is their further contention that in pursuance of order dated 06.06.2009 of the Revenue Divisional Officer, Mahaboobnagar, the Tahsildar, Farooq Nagar Mandal by order dated 27.06.2009 transferred pattas for the lands in the names of the petitioners 2 to 7 and changed revenue records showing their possession of the said lands. In the year 2010, the 2nd petitioner sold Ac.2-01 Guntas of land in S.No.626 in favour of the 1st petitioner under three different sale deeds. It is the petitioners’ further contention that late Ahmed Ali Siddiqui filed declaration under the A.P. Agricultural Lands (Ceiling on Agricultural Holdings) Act, 1973 declaring the above facts. Finally, it is contention of the petitioners that Gazette notification dated 04.09.2003 is bad since it was given without any notice to the protected tenants who are in possession of the lands and without making any enquiry under the provisions of the Wakf Act, 1995. 4) It is contention of the petitioners in W.P.No.29360 of 2011 that late Mir Tahir Ali was the original owner of total of Ac.9-26 Guntas of land in S.Nos.261, 289, 290, 291, 292, 293, 294, 318 and 667 of Yelkatta village and that one Late Gunna Narayana and Late Gunna Chennaiah were the protected tenants of the said lands as per the tenancy register of the year 1950-51 till the year 1984-85 and that the petitioners 1 to 5 are lineal decendants of the original protected tenants and that Revenue Divisional Officer, Mahaboobnagar by his orders dated 12.07.1988 and 17.02.2003 issued certificates in Form-III under Section 7(1) and 10 of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 (in short, the 1955 Act) in favour of the petitioners 1, 2, 4 and 5 and husband of the 3rd petitioner and that their names were mutated in revenue records as pattadars and possessors. Subsequently the Joint Collector, Mahaboobnagar issued order dated 11.06.2007 setting aside order granting occupancy right certificate in an appeal filed by son of Mir Tahir Ali viz., Mir Qudrat Ali against the order dated 12.07.1988. W.P.No.21089 of 2007 filed by the petitioners against the Joint Collector’s order was admittedly dismissed for default on 25.06.2009. It is the petitioners’ further contention that Revenue Divisional Officer, Mahaboobnagar conducted enquiry and passed orders dated 17.12.2010 issuing O.R.C (occupancy rights certificate) in favour of Dargah Hazrath Syed Shah Ali Hussaini Saheb Rh (Wakf), Kachiguda, Hyderabad. 5) The 2nd respondent filed counter affidavits in both the writ petitions denying rights of the petitioners in both the writ petitions in the respective lands and contending inter alia that lands which are subject matters in both the writ petitions are wakf properties and that the lands in W.P.No.20293 of 2011 are wakf properties belonging to Dargah Hzt. Ghulam Nabi Sha Saheb Rh. & Mosque outside abadi in Inam land and the property meant for Fatheha and prayer and maintenance of said wakf institution under the Muthavalliship of Ghulam Nabi Shah Sajjad-e-Sani and that the lands in W.P.No.29360 of 2011 are Inam Mashrutul Khidmat lands attached to Dargah Hzt. Syed Shah Ali Hussaini Saheb Rh. Endowed for God and Gul under wakf properties. 6) Sheet anchor of the petitioners’ contention in these writ petitions is that without giving notice to the petitioners who have been in possession of the lands as protected tenants, the lands were notified as wakf properties under the Wakf Act, 1995 and that it is contrary to the principles of natural Justice and also contrary to Section 4 and 5 of the Wakf Act, 1995. On the other hand, it is contention of the respondents that the lands were notified as wakf properties in the Andhra Pradesh Gazette after following due procedure prescribed by law. It is the respondents’ further contention that the provisions of the 1955 Act and the 1950 Act have no application to wakf lands. It is further contention of the respondents that remedy of the petitioners in case they are aggrieved on notifying the lands as wakf lands, is before the Wakf Tribunal and is not before this Court under Article 226 of the Constitution of India. On the other hand, it is contended by the petitioners’ counsel that in case the petitioners are questioning the notification as such, then the petitioners’ remedy may be before the Wakf Tribunal, but the petitioners can approach this Court under Article 226 of the Constitution of India as the petitioners are questioning the process which preceded the notification in question. 7) The petitioners’ counsel placed reliance on B.Gowra Reddy V. Government of Andhra Pradesh[1] of Single Judge of this Court, wherein it was observed: “27. It is not in dispute that the petitioners have challenged the validity of the Gazette notification dated 9.2.1989. It is their case that there is a violation of provisions contained under Section 4 of the Act inasmuch no enquiry was conducted by the Survey Commissioner as required under Section 4 of the Act. In such an event, it is the case of the petitioners that no suit need be filed as the validity of the notification itself is in challenge. -------------------------- ---------------------------------- ------------------------------- But, however, in case when the order passed is wholly without jurisdiction or the authority lacks the competence or there is infraction of statutory provisions, it cannot be said that the Writ Petition is not available to the aggrieved party. In the instant cases, it has to be seen whether the notification issued under Section 5 of the Act was preceded by the statutory compliance as stipulated under Section 4 of the Act.” and held as follows: “32. It is true that under Section 83 of the Act any dispute arising out of wakf properties can be agitated only before the Tribunal constituted under the Act. But, in the instant cases, the very principal requirement of notice and conducting enquiry as envisaged under the Act are lacking. Therefore, the question of driving the petitioners to the Tribunal would not arise”. It is further contended by the petitioners’ counsel that B.Gowra Reddy (1 supra) was followed by Division Bench of this Court in unreported decision in A.P. State Wakf Board V. Sayyed Amanullah Hussaini in W.A. No.772 of 2007, dated 28.09.2007. 8) On the other hand, it is contended by the respondents’ counsel that the above two decisions rendered by the Single Judge bench and the Division Bench of this Court are no longer good law in view of recent judgment of the Supreme Court in Board of Wakf, West Bengal V. Anis Fatma Begum[2]. Reliance is also placed by the respondents’ counsel on another decision of the Supreme Court in Sayyed Ali V. Andhra Pradesh Wakf Board[3], wherein it was held that in order to become a property to be wakf property, dedication of property need not be in favour of Dargah (wakf institution) and that grant by way of service inams for purposes recognised by Muslim Law as pious, religious or charitable also constituted the property as wakf and that wakf being permanent dedication, grant of patta under Inams Act does not nullify it. In reply to the said contentions of the respondents, the petitioners’ counsel contended that the Single Judge’s decision in B.Gowra Reddy (1 supra) was confirmed in appeal by Division Bench of this Court by order dated 21.03.2011 in W.A. Nos.745, 868, 778, 885, 729 and 878 of 2002 wherein several case law including Sayyed Ali (3 supra) of the Supreme Court and Board of Wakf, West Bengal (2 supra) of the Supreme Court were also considered. 9) The Division Bench in A.P. State Wakf Board V. B. Gowra Reddy distinguished the Supreme Court cases referred above on facts by stating that the facts in those cases are entirely different to the issues involved in the present case. While applying Supreme Court decisions to the facts of the present case, it is to be borne in mind that irrespective of facts in the Supreme Court cases, the Court should see as to what was the ratio or obiter in that decision of the Supreme Court. Irrespective of the fact whether it is a ratio decidendi or obiter dicta, as per law of precedents, the Supreme Court decision is binding on all the Courts in India including the High Court whether presided by a Single Judge or Division Bench or Full Bench. Ratio of the Supreme Court in Board of Wakf, West Bengal (2 supra) is to the following effect: “10. In our opinion, all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India.:------------------------------------------------------------------------- ------------------------------------------------------------------- 14. Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words “any dispute, question or other matters relating to a Wakf or Wakf property” are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal.----------------------------- ------------------------------------------------------------------------------ 17. We may clarify that under the proviso to Section 83(9) of the Wakf Act, 1995 a party aggrieved by the decision of the Tribunal can approach the High Court which can call for the records for satisfying itself as to the correctness, legality or propriety of the decision of the Tribunal. This provision make it clear that the intention of Parliament is that the party who wishes to raise any dispute or matter relating to a Wakf or Wakf property should first approach the Tribunal before approaching the High Court. 18. It is well-settled that when there is a special law providing for a special forum, then recourse can be taken to the general law”. In whatever context the Supreme Court analysed the provisions of the Wakf Act, 1995 and gave the above findings on analysis of the provisions therein, it is intention of the Supreme Court that general law must give way to the special law enacted under the Wakf Act. When the Supreme Court held that the words “any dispute, question or other matters relating to Wakf or Wakf property” are words of very wide connotation, it is not open to any inferior Court to abridge wide connotation or wide amplitude of the said words by confining ratio of the Supreme Court to facts of the case in which the said ratio was pronounced. Not only notification by which lands in question were notified as wakf properties but also the process which preceded issue of such notification comes within the wide connotation of “any dispute, question or other matters relating to a Wakf or Wakf Property” occurring in Section 83(1) of the Wakf Act, 1995 as laid down in Board of Wakf, West Bengal (2 supra). 10) Wakf Tribunal is constituted under Section 83(1) of the Wakf Act for determination of any dispute, question or other matter relating to a wakf or wakf property under that Act. In these writ petitions, the petitioners contend that the respective lands are private patta lands in respect of which the authorities granted occupancy right certificate under the 1955 Act as well as recognised their title to these lands under Section 38-E of the 1950 Act and the Rules framed thereunder. On the other hand, it is contention of the Wakf Board that those lands are Wakf Properties. It is primarily a dispute regarding title for the lands which are notified as Wakf properties under the Wakf Act. In these writ petitions, the impugned notification was published in the Andhra Pradesh Gazette on 04.09.2003, whereas the petitioners intend to question the same herein in the year 2011 after a gap of 8 years. Publication of notification in the State Gazette operates as legal notice to all the concerned. Taking advantage of the orders of the revenue authorities in their favour in the year 2009, the petitioners intended to question notification by which the lands were notified as Wakf Properties under the Wakf Act is being challenged. When the lands are notified wakf lands by virtue of the notification published in official gazette on 04.09.2003, the revenue authorities have no jurisdiction to decide nature of those lands and to grant ownership rights under Section 38- E of the 1950 Act or protected tenant certificates under the 1955 Act. 11) Statement of objects and reasons appended to the 1955 Act expressly indicates that the bill provided for abolition of all inams other than inams held by religious and charitable institutions and village service inams. Also, Section 102(d) of the 1950 Act specifically excludes application of the said Act to inams held by religious or charitable institutions. Therefore, when the lands are notified as lands belonging to Wakf Institution or Wakf Property, then Revenue Divisional Officer, Mahaboobnagar loses jurisdiction to entertain proceedings either under the 1955 Act or under the 1950 Act and grant ownership certificates under Section 38-E of the 1950 Act or protected tenancy certificate (O.R.C) under the 1955 Act in the year 2009 or in the year 2010 respectively. Further, the said orders were obtained by the respective petitioners behind the back of the Wakf Institution and A.P. State Wakf Board even though all the lands are notified as lands belonging to Wakf Institution. 12) In any event, remedy of the petitioners against the impugned notification published in the Andhra Pradesh Gazette on 04.09.2003 is before the Wakf Tribunal initially and not before this Court. It is only after the Wakf Tribunal gives the respective decisions, the aggrieved parties will have to approach this Court under proviso to Section 83(9) of the Wakf Act, 1995. 13) In the result, both the writ petitions are dismissed. No costs. The respective petitioners in these two writ petitions are at liberty to approach the A.P. Wakf Tribunal, Hyderabad for necessary relief. _______________________________ SAMUDRALA GOVINDARAJULU, J February 29, 2012 NOTE: L.R.Copy to be marked (b/o)Ksh [1] 2002(3) ALT 439 [2] 2011 (1) ALD 61 (SC) [3] AIR 1998 Supreme Court 972