Supreme Court of India
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA)versusA. P. STATE WAKF BOARD & ORS.
- Citation
- 2022 INSC 155
- Decided
- 7 February 2022
- Disposal
- Appeal(s) allowed
- Bench
- HEMANT GUPTA
Holding
The errata notification was ultra vires, the Wakf Board failed to conduct a statutory inquiry under s.40, and the High Court erred in directing the matter to the Wakf Tribunal; the notification is quashed and the land vests with the State/Corporation.
Summary
The State of Andhra Pradesh (now Telangana) challenged an errata notification issued by the A.P. State Wakf Board that added 1,654 acres and 32 guntas of land to the list of Wakf properties, claiming the Board had not complied with the procedural requirements of the Wakf Act, 1995. The High Court had dismissed the State's writ petitions and directed the parties to the Wakf Tribunal, a decision the Supreme Court found erroneous. The Court held that the Board’s power to declare property as Wakf under s.32(2)(n) must be exercised in accordance with the inquiry mandated by s.40, and that the errata notification, which effectively created new rights, was ultra vires and could not be justified as a mere clerical correction. Publication of the notification in the State Gazette does not bind the State, and the State is not estopped from contesting it. Consequently, the Supreme Court set aside the High Court’s order, quashed the errata notification, and restored the land to the State/Corporation.
Issues considered
- Whether the High Court was justified in relegating the parties to the Wakf Tribunal.
- Whether the State could dispute the validity of the errata notification under Article 226.
- Whether the State is estopped from challenging the notification because it was published in the State Gazette.
- Whether the errata notification was issued under the powers conferred by s.32 read with s.40 of the Wakf Act, 1995.
- Whether the second survey report and the order of the Atiyat Court sufficed as material for the errata notification under s.5 of the Wakf Act, 1995.
- Whether the Atiyat Court's order dealt with succession or the nature of the grant as a service grant.
- Whether the land is Mashrut‑ul‑Khidmat and thus remains Wakf land despite abolition of the jagir.
- Whether, if the errata notification is upheld, the Dargah is entitled to possession or the State is entitled to compensation for vacant portions.
Legislation cited
- Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955
- Andhra Pradesh (Telangana Area) Atiyat Enquiries Act, 1952s. 1, s. 13, s. 2, s. 3
- General Clauses Act, 1897s. 4
- Hyderabad (Abolition of Jagirs) Regulation, 1358F
- Hyderabad (Jagirs) Commutation Regulation, 1359F
- Indian Evidence Act, 1872s. 114(e), s. 81
- Wakf Act, 1954s. 27, s. 4, s. 43, s. 5
- Wakf Act, 1995s. 105, s. 32(2)(n), s. 40, s. 41, s. 5, s. 5(2)
Subjects
wakferrata notificationofficial gazettequasi‑judicial functionnatural justicestatutory interpretationland acquisitionAtiyat Enquiries Actabolition of jagirsArticle 226
Judgment
1226 [2022] REPORTS
SUPREME COURT 19 S.C.R. 1226 [2022] 19 S.C.R.
A STATE OF ANDHRA PRADESH
(NOW STATE OF TELANGANA)
v.
A. P. STATE WAKF BOARD & ORS.
B (Civil Appeal No. 10770 of 2016)
FEBRUARY 07, 2022
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Wakfs – Publication of Notification issued by Wakf Board in
C the State Government Gazette – Effect of – Whether the State is
estopped to challenge such notification – Held: The Wakf Board is
a statutory authority under the 1954 Act as well as under the 1995
Act – The Official Gazette has to carry any notification at the instance
of the Wakf Board – The State Government is not bound by the
publication of the notification in the Official Gazette at the instance
D
of the Wakf Board only for the reason that it has been published in
the Official Gazette – The publication of a notice in an Official
Gazette has a presumption of knowledge to the general public as
an advertisement published in a newspaper – The mere reason that
the notification was published in the State Government gazette is
E not binding on the State Government – Wakf Act, 1995 – Wakf Act,
1954.
Wakfs – Wakf Act, 1995 – ss.40 and 32(2)(n) – Wakf property
– Whether power to investigate and determine the nature of property
is an administrative function or a quasi-judicial function as an
F inquiry is required to be conducted before any property is declared
to be Wakf property – Power of the Wakf Board to investigate and
determine the nature and extent of Wakf – Held: Is not purely an
administrative function – The power to determine under s.32(2)(n)
is the source of power but the manner of exercising that power is
contemplated u/s.40 – An inquiry is required to be conducted if a
G Board on the basis of information collected finds that the property
in question is a wakf property – An order passed thereon is subject
to appeal before the Wakf Tribunal, after an inquiry required is
conducted in terms of sub-section (1) of s.40 – Therefore, there
cannot be any unilateral decision without recording any reason
H that how and why the property is included as a wakf property – The
1226
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1227
A. P. STATE WAKF BOARD
finding of the Wakf Board is final, subject to the right of appeal A
under sub-section (2) – Thus, any decision of the Board is required
to be as a reasoned order which could be tested in appeal before
the Wakf Tribunal – The Wakf Board has power to determine the
nature of the property as wakf under s.32(2)(n) but after complying
with the procedure prescribed as contained in s.40 – Such procedure
B
categorically prescribes an inquiry to be conducted – The conduct
of inquiry pre-supposes compliance of the principles of natural
justice so as to give opportunity of hearing to the affected parties –
On facts, the proceedings produced by the Wakf Board do not show
any inquiry conducted or any notice issued to either of the affected
parties – Primarily, two factors had led the Wakf Board to issue the C
impugned Errata notification, that is, order of the NazimAtiyat and
the second survey report – Both may be considered as material
available with the Wakf Board but in the absence of an inquiry
conducted, it cannot be said to be in accordance with the procedure
prescribed u/s.40 – Since there is no determination of the fact
D
whether the property in question is a wakf property after conducting
an inquiry in terms of s.40(1), the Errata notification cannot be
deemed to be issued in terms of s.32 r/w s.40.
Wakfs – Wakf Act, 1995 – s.40(3), proviso – Reliance on
proviso to s.40(3) of 1995 Act, contemplating notice to the registered
trust or society in case the Wakf Board has any reason to believe E
that any property is Wakf and is registered under any of the Acts –
Held: Is absolutely misconceived – These provisions deal with an
altogether different situation – If a trust or society is already
registered but the Wakf Board finds it to be Wakf, the statute
contemplates notice to the authority – It does not mean that such F
trust or society is not required to be heard – The hearing to Trust or
Society would also be as per the principles of natural justice.
Wakfs – Entitlement of Government to dispute validity of
Notification issued by Wakf Board before the Writ Court u/Art. 226
of the Constitution – Held: State Government, as a juristic entity, G
has a right to protect its property through the writ court, just as any
individual could have invoked the jurisdiction of the High Court –
On facts, the State Government was competent to invoke the writ
jurisdiction against the action of the Wakf Board to declare the
land in question as wakf property – Constitution of India – Art.
226. H
1228 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Wakfs – Wakf Act, 1995 – s.5 and s.32(2)(n) r/w s.40 – Errata
notification published by Wakf Board in the year 2006, 17 years
after the first notification in 1989 – Challenge to – Held: In the
facts of the present case, the Errata notification was nothing but a
fresh notification altogether – Errata is a correction of a mistake –
Hence, only arithmetical and clerical mistakes could be corrected
B
and the scope of the notification could not be enlarged by virtue of
an errata notification – As against 5506 sq. yards of land notified
as wakf property in the year 1989, large area of 1654 acres and 32
guntas of land could not be included under the guise of an errata
notification as it is not a case of clerical or arithmetical mistake but
C inclusion of large area which could not be done without conducting
a proper Inquiry either under s.32(2)(n) r/w s.40 or on the basis of
survey report which was called by the State Government by
appointing a Survey Commissioner.
Wakfs – Whether on facts, the High Court was justified in
D relegating the parties to statutory remedy before the Wakf Tribunal
– Held: High Court examined the merits of the contention raised
including the documents filed so as not to accept the contentions of
the State – Though the High Court expressed the same to be prima
facie view, but in fact, nothing was left to suggest that it was not a
final order as far as the State is concerned with the order of the
E dismissal of its writ petition – Even otherwise, the questions raised
were interpretation of the statutes, the Farmans issued by Sovereign
from time to time and the interpretation of the document to the facts
of the present case – It is not a case where any oral evidence would
be necessary or is available now – Since the question was in respect
F of interpretation of the statutes and the documents primarily issued
by the Sovereign, the matter needs to be examined on merits as
detailed arguments have been addressed by counsel for the parties
– Thus, the High Court erred in law, in the facts and circumstances
of the case, to relegate the parties to the statutory remedy.
G Wakf Act, 1995 – ss.5 and 105 – Publication of Errata
notification u/s.5 – Powers conferred on the Wakf Board – Non-
submission of second survey report to the State Government – Effect
– Plea that once the Wakf Board had the power to publish notification
after perusing the various documents, the same could not be said to
be illegal only for the reason that report was not submitted to the
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1229
A. P. STATE WAKF BOARD
State Government as contemplated by sub-section (1) of s.5 – A
Tenability of – Held: The plea that the notification is in terms of s.5
of 1995 Act is not tenable – Admitted case that the second survey
report was not submitted to the State Government and such report
has not even been forwarded by the Government to the Wakf Board
– The Wakf Board may have a right to requisition of any document
B
in terms of power conferred u/s.105, but if a procedure is prescribed
for issuance of a notification, it could be issued only in the manner
prescribed and not in any other manner – When a statute vests
certain power in an authority to be exercised in a particular manner,
then the said authority has to exercise the same only in the manner
prescribed by the statute itself – Therefore, it cannot be said that C
since submission of the second survey report to the State Government
was only a ministerial action, therefore, the Board had the
jurisdiction to publish notification u/s.5.
Right of the State to acquire property – Land dedicated for
pious and religious purpose is not immune from its vesting with the D
State.
Andhra Pradesh (Telangana Area) Atiyat Enquiries Act, 1952
–Jurisdiction of the Atiyat Court – Held: Is limited to disputes relating
to Atiyat grants as defined in the Enquiries Act.
Words and Phrases – Word “errata” – Scope and meaning of E
– Held: “Errata” is a term of French origin which means a thing
that should be corrected – It means a mistake in printing or writing.
Allowing the appeals, the Court
HELD: 1. In the case at hand, the High Court has examined F
the merits of the contention raised including the documents filed
so as not to accept the contentions of the State. Though the High
Court has expressed the same to be prima facie view, but in fact,
nothing was left to suggest that it was not a final order as far as
the State is concerned with the order of the dismissal of its writ
petition. Even otherwise, the questions raised before this Court G
are the interpretation of the statues, the Farmans issued by
Sovereign from time to time and the interpretation of the
document to the facts of the present case. It is not a case where
any oral evidence would be necessary or is available now. In fact,
that was not even the suggestion before this Court. Since the
H
1230 SUPREME COURT REPORTS [2022] 19 S.C.R.
A question was in respect of interpretation of the statutes and the
documents primarily issued by the Sovereign, the matter needs
to be examined on merits as detailed arguments have been
addressed by counsel for the parties. Thus, the High Court erred
in law, in the facts and circumstances of the case, to relegate the
parties to the statutory remedy before the Wakf Tribunal. [Para
B
119][1316-A-D]
2. The State Government, as a juristic entity, has a right to
protect its property through the writ court, just as any individual
could have invoked the jurisdiction of the High Court. Therefore,
the State Government is competent to invoke the writ jurisdiction
C against the action of the Wakf Board to declare the land measuring
1654 acres and 32 guntas as wakf property. [Para 125][1318-F-
G]
3. The presence of the Government Pleader before the
Nazim Atiyat was for a limited purpose as the grants were to be
D paid by State Government. The State was not a party either before
the Nazim Atiyat or before the High Court. The State would be
bound by the orders, if it was impleaded as party as it is likely to
be affected on account of the orders passed. The liability of State
for payment of grant was not in dispute but the question was as to
E whom the grants would be payable. Thus, the presence of
Government Pleader was for the limited purpose of facilitating
the implementation of the orders passed. A perusal of the record
of the Wakf Board, shows that the Errata notification was published
when the same was sent by the Chief Executive Officer of the
Wakf Board to the Commissioner, Government Printing Press
F on 13.03.2006. This publication of notification was made under
Section 5(2) of the 1995 Act under the authority of the Chief
Executive Officer of the Wakf Board. Hence, the notification was
not at the instance of the State Government but was an act of the
Wakf Board alone. The argument raised that since the Errata
G notification was published in State Government Gazette,
therefore, the State cannot turn around to say that they had no
knowledge or that they are not bound by the notification so
published is not tenable. The purpose, object and scope of the
publications in the Official Gazette is not what is sought to be
contended. The Court is to presume the genuineness of any
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1231
A. P. STATE WAKF BOARD
documents published in any Official Gazette as contemplated by A
Section 81 and Section 114 (e) of the Evidence Act, 1872. The
publication in the Official Gazette is not only for the affairs of the
State but has multiple uses. [Para 129, 130, 131][1320-B-F]
4. The Wakf Board is a statutory authority under the 1954
Act as well as under the 1995 Act. Thus, the Official Gazette had B
to carry any notification at the instance of the Wakf Board.
Therefore, the State Government is not bound by the publication
of the notification in the Official Gazette at the instance of the
Wakf Board only for the reason that it has been published in the
Official Gazette. The publication of a notice in an Official Gazette C
has a presumption of knowledge to the general public as an
advertisement published in a newspaper. Therefore, mere reason
that the notification was published in the State Government gazette
is not binding on the State Government. [Para 132][1321-G-H]
5. The Wakf Board has power to determine the nature of D
the property as wakf under Section 32(2)(n) but after complying
with the procedure prescribed as contained in Section 40. Such
procedure categorically prescribes an inquiry to be conducted.
The conduct of inquiry pre-supposes compliance of the principles
of natural justice so as to give opportunity of hearing to the
E
affected parties. The proceedings produced by the Wakf Board
do not show any inquiry conducted or any notice issued to either
of the affected parties. Primarily, two factors had led the Wakf
Board to issue the Errata notification, that is, order of the Nazim
Atiyat and the second survey report. Both may be considered as
material available with the Wakf Board but in the absence of an F
inquiry conducted, it cannot be said to be in accordance with the
procedure prescribed under Section 40 of the 1995 Act. [Para
146][1329-F-H]
6. Since there is no determination of the fact whether the
property in question is a wakf property after conducting an inquiry G
in terms of Section 40(1) of the 1995 Act, the Errata notification
cannot be deemed to be issued in terms of Section 32 read with
Section 40 of the 1995 Act. Such determination alone could have
H
1232 SUPREME COURT REPORTS [2022] 19 S.C.R.
A conferred right on the affected parties to avail the remedy of
appeal under Section 40 of the 1995 Act. [Para 147][1330-A-B]
7. The reliance on proviso to Section 40(3) of 1995 Act,
contemplating notice to the registered trust or society in case
the Board has any reason to believe that any property is Wakf
B and is registered under any of the Acts is absolutely misconceived.
These provisions deal with an altogether different situation. A
trust or society is already registered but the if Board finds it to
be Wakf, the statute contemplates notice to the authority. It does
not mean that such trust or society is not required to be heard.
The hearing to Trust or Society would also be as per the principles
C of natural justice. [Para 148][1330-C-D]
8.1. The question to be examined was whether the Board
could issue the Errata notification after a lapse of 17 years from
the date of first notification, i.e., 9.2.1989. The exercise leading
to the notification started with a letter from Syed Safiullah
D Hussaini, the Mutawalli on 30.1.2005. He is the mutawalli
mentioned in the first notification published in the year 1989.
Since the notification was issued with him as Mutawalli, then his
inaction for 17 long years speaks volumes of his bona-fide in
initiating the process to include the large area of land as wakf.
E [Para 152][1332-C-D]
8.2. In the facts of the present case, the Errata notification
is nothing but a fresh notification altogether. Errata is a correction
of a mistake. Hence, only arithmetical and clerical mistakes could
be corrected and the scope of the notification could not be
F enlarged by virtue of an errata notification. As against 5506 sq.
yards of land notified as wakf property in the year 1989, large
area of 1654 acres and 32 guntas of land could not be included
under the guise of an errata notification as it is not a case of
clerical or arithmetical mistake but inclusion of large area which
could not be done without conducting a proper Inquiry either
G under Section 32(2) (n) read with Section 40 or on the basis of
survey report which was called by the State Government by
appointing a Survey Commissioner. [Para 154][1333-G-H; 1334-
A]
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1233
A. P. STATE WAKF BOARD
9. The Enquiries Act is applicable in respect of Atiyat grants A
alone. Atiyat grants after the commencement of Jagir Abolition
Regulation mean only the commutation sum payable under the
Commutation Regulation or the compensation payable under the
Inams Abolition Act or cash grants etc. The Jurisdiction of the
Atiyat Court would be limited to the disputes relating to Atiyat
B
grants as defined in the Enquiries Act. [Paras 162 and 165][1336-
D-E; 1338-B]
CIT v. Anjum M.H. Ghaswala (2002) 1 SCC 633
: [2001] 4 Suppl. SCR 303 – followed.
Director of Settlements, A.P. & Ors. v. M.R. Apparao & C
Anr. (2002) 4 SCC 638 : [2002] 2 SCR 661 and D B
Babu Verghese v. Bar Council of Kerala (1999) 3 SCC
422 : [1999] 1 SCR 1121 – relied on.
Rashid Wali Beg v. Farid Pindari & Ors. (2021) SCC
Online SC 1003; Board of Wakf, West Bengal & Anr. v. D
Anis Fatma Begum & Anr. (2010) 14 SCC 588; Union
of India v. T.R. Varma, AIR 1957 SC 882; Union of
India & Ors. v. Ghaus Mohammad AIR 1961 SC 744
: [1962] SCR 744 and Balkrishna Ram v. Union of India
(2020) 2 SCC 442 : [2020] 2 SCR 581 – distinguished.
E
Sikander Jehan Begum v. A.P. State Govt. AIR 1962
SC 996 : [1962] Suppl. SCR 226; Raja Ram Chandra
Reddy & Anr. v. Rani Shankaramma & Ors. AIR 1956
SC 319; M.P. Wakf Board v. Subhan Shah (Dead) By
Lrs. and Others (2006) 10 SCC 696 : [2006] 8 Suppl.
SCR 85; Mohd. Habbibuddin Khan v. Jagir F
Administrator, Government of Andhra Pradesh and
Others (1974) 1 SCC 82; K.S.B. Ali v. State of A.P. and
Others (2018) 11 SCC 277 : [2017] 12 SCR 698;
Committee of Management and another v. Vice
Chancellor (2009) 2 SCC 630 : [2008] 17 SCR 774;
Addl. Secy. to the Govt. of India v. Alka Subhash Gadia G
(Smt) 1992 Supp (1) SCC 496 : [1990] 3 Suppl.
SCR 583; K.K. Kochunni v. State of Madras AIR 1959
SC 725 : 1959 Suppl. SCR 316; Whirlpool Corporation
v. Registrar of Trademarks (1998) 8 SCC 1 : [1998]
2 Suppl. SCR 359; Kranti Associates (P) Ltd. v. Masood H
1234 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Ahmed Khan (2010) 9 SCC 496 : [2010] 10 SCR 1070;
Indian National Congress (1) v. Institute of Social
Welfare (2002) 5 SCC 685 : [2002] 3 SCR 1040;
Harbans Lal Sahnia v. Indian Oil Corp. (2003) 2 SCC
107; Radha Krishan Industries v. State of Himachal
Pradesh (2021) 6 SCALE 78; Rajasthan Wakf Board
B
v. Devki Nandan Pathak & Ors. (2017) 14 SCC 561 :
[2017] SCR 878; Haryana Wakf Board v. Mahesh
Kumar (2014) 16 SCC 45 : [2013] 12 SCR 596; Punjab
Wakf Board v. Sham Singh Harike (2019) 4 SCC 698;
Telangana State Wakf Board & Anr. v. Mohamed
C Muzafar (2021) 9 SCC 179; Nawab Zain Yar Jung
(since deceased) & Ors. v. Director of Endowments &
Anr. AIR 1963 SC 985 : [1963] SCR 469; Sayyed Ali
& Ors. v. A.P. Wakf Board, Hyderabad & Ors. (1998) 2
SCC 642 : [1998] 1 SCR 398; T.N. Wakf Board v.
Hathija Ammal (Dead) by LRs & Ors. (2001) 8 SCC
D
528 : [2001] 2 Suppl. SCR 428; Madanuri Sri Rama
Chandra Murthy v. Syed Jalal (2017) 13 SCC 174 :
[2017] 5 SCR 294; Chief Conservator of Forests, Govt.
of A.P. v. Collector & Ors. (2003) 3 SCC 472 : [2003]
2 SCR 180; K.B. Ramachandra Raje Urs (Dead) by
E Legal Representatives v. State of Karnataka & Ors.
(2016) 3 SCC 422 : [2015] 11 SCR 974; Whirlpool
Corporation v. Registrar of Trade Marks, Mumbai &
Ors. (1998) 8 SCC 1 : [1998] 2 Suppl. SCR 359;
Commissioner of Income Tax & Ors. v. Chhabil Dass
Agarwal (2014) 1 SCC 603; Babubhai Muljibhai Patel
F
v. Nandlal Khodidas Barot and Others (1974) 2 SCC
706 : [1975] 2 SCR 71; Radha Krishan Industries v.
State of H.P. (2021) 6 SCC 771; Rajasthan State
Electricity Board, Jaipur v. Mohan Lal & Ors AIR 1967
SC 1857 : [1967] SCR 377; State of U.P. v. Neeraj
G Awasthi & Ors. (2006) 1 SCC 667 : [2005] 5 Suppl.
SCR 906; Dwarkadas Marfatia and Sons v. Board of
Trustees of the Port of Bombay (1989) 3 SCC 293
: [1989] 2 SCR 751; Shrilekha Vidyarthi (Kumari) v.
State of U.P. (1991) 1 SCC 212 : [1990] 1 Suppl. SCR
625; M.J. Sivani and others v. State of Karnataka (1995)
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1235
A. P. STATE WAKF BOARD
6 SCC 289 : [1995] 3 SCR 329; Oil and Natural Gas A
Commission v. Collector of Central Excise (1995) Supp
(4) SCC 541; Electronics Corporation of India Limited
v. Union of India (2011) 3 SCC 404 : [2011] 2 SCR
971; Province of Bombay v. Khushaldas S. Advani &
Ors. AIR 1950 SC 222 : [1950] SCR 621; State of
B
Himachal Pradesh v. Raja Mahendra Pal & Ors. (1999)
4 SCC 43 : [1999] 2 SCR 323; Nawab Zain Yar Jung
(since deceased) & Ors. v. Director of Endowments &
Anr. AIR 1963 SC 985 : [1963] SCR 469; Raja
Rameshwar Rao and Another v. Raja Govind Rao AIR
1961 SC 1442 : [1962] SCR 618; Sarwanlal & Anr. v. C
State of Hyderabad (Now Andhra Pradesh) & Ors. AIR
1960 SC 862 : [1960] SCR 311 and Khajamian Wakf
Estates v. State of Madras (1970) 3 SCC 894 : [1971]
2 SCR 790 – referred to.
Raj Kishan Pershad and Ors. v. Joint Collector-I and D
Ors. (2018) 6 ALT 79 (DB); Ahmad-Un-Nissa Begum
and Another v. The State through the Chief Minister
and Others AIR 1952 Hyd 163; K.S.B. Ali v. State of
A.P. and Others (2007) SCC Online AP 765; R.
Doraswamy Reddy v. The Board of Wakf A.P. Hyderabad
rep. by its Secretary 1978 SCC OnLine AP 117; A.P.A. E
Rasheed v. N.N. Khalid Haji & Anr. 2011 SCC OnLine
Ker 4185; Parvati Devi v. State of U.P. (2007) 6 ALL
LJ 50; Vidya Varuthi Thirtha v. Balusami Ayyar & Ors.
AIR 1922 PC 123; Sarwarlal and Others v. State of
Hyderabad AIR 1954 Hyd 227; M/s Trinity F
Infraventures Limited v. The State of Telangana,
represented by its Principal Secretary 2018 SCC Online
Hyd 360; Universal Cans & Containers Ltd. v. Union
of India 1991 SCC Online Del 784; Ezhome Sunni
Valiya Juma Masjid v. Kerala State Wakf Board 2019
(3) KLT 1064 and Amjad Ali Mirza & Ors. v. Board of G
Wakfs & Ors. [Decision dated 20.2.2019 of Calcutta
High Court in C.O. No. 749 of 2018] – referred to.
Attorney General v. Hughes (1899) 48 Weekly
Reporter 150 – referred to.
H
1236 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Case Law Reference
[1960] SCR 311 referred to Para 9
[1962] Suppl. SCR 226 referred to Para 11
AIR 1956 SC 319 referred to Para 22
B [2006] 8 Suppl. SCR 85 referred to Para 64
(1974) 1 SCC 82 referred to Para 68
[2017] 12 SCR 698 referred to Para 68
[2008] 17 SCR 774 referred to Para 68
C
[1990] 3 Suppl. SCR 583 referred to Para 71
[1959] Suppl. SCR 316 referred to Para 71
[1998] 2 Suppl. SCR 359 referred to Para 71
[2020] 2 SCR 581 distinguished Para 71
D
[2010] 10 SCR 1070 referred to Para 73
[2002] 3 SCR 1040 referred to Para 74
(2003) 2 SCC 107 referred to Para 79
(2021) 6 SCALE 78 referred to Para 79
E
[2017] SCR 878 referred to Para 82
[2013] 12 SCR 596 referred to Para 82
(2010) 14 SCC 588 distinguished Para 82
F (2019) 4 SCC 698 referred to Para 82
(2021) 9 SCC 179 referred to Para 82
AIR 1957 SC 882 distinguished Para 83
[1962] SCR 744 distinguished Para 83
G [1963] SCR 469 referred to Para 85
[1998] 1 SCR 398 referred to Para 86
[2001] 2 Suppl. SCR 428 referred to Para 92
[2017] 5 SCR 294 referred to Para 92
H [2003] 2 SCR 180 referred to Para 94
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1237
A. P. STATE WAKF BOARD
[2015] 11 SCR 974 referred to Para 96 A
[1998] 2 Suppl. SCR 359 referred to Para 103
(2014) 1 SCC 603 referred to Para 103
[2002] 2 SCR 661 relied on Para 108
[1975] 2 SCR 71 referred to Para 115 B
(2021) 6 SCC 771 referred to Para 116
[1967]SCR 377 referred to Para 120
[2005] 5 Suppl. SCR 906 referred to Para 121
C
[1989] 2 SCR 751 referred to Para 122
[1990] 1 Suppl. SCR 625 referred to Para 123
[1995] 3 SCR 329 referred to Para 124
(1995) Supp (4) SCC 541 referred to Para 126
D
[2011] 2 SCR 971 referred to Para 127
[1950] SCR 621 referred to Para 141
[1999] 2 SCR 323 referred to Para 142
[1999] 1 SCR 1121 relied on Para 149
E
[2001] 4 Suppl. SCR 303 followed Para 150
[1963] SCR 469 referred to Para 168
[1962] SCR 618 referred to Para 170
[1960] SCR 311 referred to Para 171 F
[1971] 2 SCR 790 referred to Para 196
CIVIL APPELLATE JURISDICTION : Civil Appeal No.10770
of 2016.
From the Judgment and Order dated 03.04.2012 of the High Court
G
of Judicature of Andhra Pradesh at Hyderabad in W. P. No.23578 of
2007.
With
Civil Appeal Nos.10738, 10768, 10769, 10773, 10775, 10776-10777,
10771, 10772 And 10774 of 2016. H
1238 SUPREME COURT REPORTS [2022] 19 S.C.R.
A V. Giri, Huzefa A. Ahmadi, Nakul Dewan, C. S. Vaidyanathan,
Salman Khurshid, S. Wasim A. Qadri, Randeep Rai, Basavaprabhu S.
Patil, Ranjit Kumar, Anoop Chaudhary, Ashish Dholakia, K.
Ramamoorthy, Sr. Advs., P. Venkat Reddy, Prashant Kumar Tyagi, P.
Srinivas Reddy, Ms. Ankita Gupta, M/s Venkat Palwai Law Associates,
Ejaz Maqbool, Ms. Akriti Chaubey, Saif Zia, Ms. Shahrukh Alam, Rohan
B
Sharma, Rohan Andrew Naik, Ms. Smriti Kalra, Abu Akram, Ms. Tanya
Shree, Ms. Bina Madhavan, Sweena Nair, P. Mohith Rao, S. Udaya
Kumar Sagar, Lakshmi Raman Singh, Tamim A. Qadri, Saeed Qadri,
Ms. Lubna Naaz, Aman Khullar, Ms. Shama Usmani, Abhinav Agnihotri,
Dipan Sethi, Ms. Rubina Virmani, Sunil Fernandes, Anirudh Sanganeria,
C Vikas Mehta, Adith Nair, Apoorv Khator, Bhaskar Nayak, V. Prabhakar,
Rajat Sehgal, Ms. Jyoti Parashar, N. J. Ramchandra, Francis Ilango,
Deepak Khurana, Ms. Nishtha Wadhawa, Umesh Kumar Khaitan,
Varinder Kumar Sharma, Varun Thakur, Ms. Parul Sharma, Bikash
Chandra, Brijesh Pandey, Salman Khan, Yugal Prasad, P. K. Singh, Ms.
Shraddha Saran, Shantanu Sharma, Akash Panwal, P. S. Sudheer, Bharat
D
Sood, Ms. Shruti Jose, Santanam Swaminadhan, Hirendranath, Ms.
Abhilasha Shrawat, Prakruti Golechha, Mrs. Aarthi Rajan, Smt. Laxmi
Arvind, Arvind Kumar, Pradeep Kumar Mathur, Khushant Wadhwa, M.
K. Tiwari, Chiranjeev Johri, Rambabu, N. Eswara Rao, Ms. Prity
Kumari, M/s M. Rambabu & Co., Mahfooz A. Nazki, Dr. Lalit Bhasin,
E Ms. Nina Gupta, Ms. Ananya Marwah, Ms. Ruchika Joshi, Mudit Sharma,
M. A. Chinnasamy, C. Rubavathi, M. Veeraragavan, P. Rajaram, Kulwant
Singh Narwal, V. Senthil Kumar, Ch. Leela Sarveswar, Venkatasamy,
Dheeraj Nair, Ms. Avni Sharma, Manoj C. Mishra, M. Shoeb Alam,
Guntur Prabhakar, Kunal Verma, Ms. Yugandhara Pawar Jha, Ashwin
Kumar Nair, Satya Mitra, G. N. Reddy, T. V. Ratnam, P. Vinay Kumar,
F
Sumanth Nookala, Advs. for the appearing parties.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
CIVIL APPEAL NOS. 10770 OF 2016, 10738 OF 2016,
G 10768 OF 2016, 10769 OF 2016, 10773 OF 2016, 10775 OF 2016
AND 10776-10777 OF 2016
1. The present appeals are directed against an order passed by
the High Court of Judicature at Andhra Pradesh on 3.4.20121 where by
H 1
2012 SCC OnLine AP 704
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1239
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
the writ petitions challenging the Errata Notification dated 13.3.2006, A
published in the Official Gazette of the State of Andhra Pradesh on
6.4.2006 on behalf of Andhra Pradesh Wakf Board2, were dismissed.
The said notification reads thus:
“THE ANDHRA PRADESH GAZETTE
PUBLISHED BY AUTHORITY B
HYDERABAD, THURSDAY, APRIL 6, 2006
Part-I Notifications by Government Heads of Departments
And other Officers
C
CONTENTS
xx xx xx
ERRATA NOTIFICATION OF DARGAH NZT HUSSAIN
SHAH VALI, MANIKONDA (V), RAJENDARANAGAR (M),
R.R. DISTRICT D
F. No. M1/69/PROT/RR/04 – In the Notification published in A.P.
Gazette No. 6-A, dated 9-2-1989 at page No. 262 under Sl. No.
3057, 3058 and 3059 the service Inam lands attached to the subject
institution were not notified. Hence the following addendum is
notified. E
ADDENDUM
For Column No. Read Column No.
10, 11 and 12 10, 11 and 12
(10) Sy. No. – (10) Sy. No. 59, 65, 71, 102, 185, 186, F
187, 188
(11) Extent Dry --- 189, 190, 191, 192, 193, 194,
195
(12) Extent Wet - 196, 197, 198, 199, 200, 201, G
202, 203, 204, 205, 206, 207,
208, 209, 210, 211, 212, 213,
2
For Short “Wakf Board” H
1240 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 214, 215, 216, 217, 218, 219,
220, 221, 222, 223, 224, 225,
226, 227, 228, 229, 231, 232,
233, 234, 235, 236, 237, 240,
B 241, 242, 244, 246, 247, 249,
250, 251, 252, 254, 256, 256,
257, 248, 258, 259, 260, 263,
264, 265 and 266 of Manikonda
C (V) Rajendranagar (M) RR
District attached to D. Hazrath
Hussain Shah Vali (11) Total
Extent Ac:- 1654.32 Gts
Hyderabad (Sd/-)
D 13-3-2006 Chief Executive Officer”
2. The above Errata notification was challenged by the then State
of Andhra Pradesh, now State of Telangana3 and the Andhra Pradesh
(now Telangana) Infrastructure Development Corporation4 by filing Writ
Petition No. 23578 of 2007 before the High Court. Civil Appeal No.
E 10770 of 2016 herein is preferred by the State against the order passed
by the High Court in the said writ petition whereas the Corporation as
transferee from the State of Andhra Pradesh in 1995 has filed Civil
Appeal No. 10769 of 2016.
3. Civil Appeal Nos. 10776-10777 of 2016 have been preferred
F by a university to whom the State had transferred 200 acres of land
situated in the village Manikonda on 18.3.1998 for the purpose of setting
up of a University. Civil Appeal No. 10773 of 2016 is filed on behalf of
transferee M/s Emaar Hills Township P. Ltd inter-alia on the ground
that on 6.11.2002, the appellant and the Corporation had signed a
G Memorandum of Understanding setting out the principal terms and
structure for the development of the Integrated Project situated at
Manikonda village. The possession of land measuring 535 acres was
handed over to such appellant on 29.11.2005 on which the appellant has
developed a township. Writ Petition No. 4515 of 2008 was filed by Lanco
H 3
For short, “the State”
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1241
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
Hills Technology Park Pvt. Ltd and Civil Appeal No. 10768 of 2016 A
arises out of the said Writ Petition. Civil Appeal No. 10768 of 2016 and
Civil Appeal No. 10775 of 2016 have beenfiled on behalf of transferees
of the Corporation. Civil Appeal No. 10738 of 2016 and Civil Appeal
Nos. 10776-10777 of 2016 are directed against an order passed by the
High Court in exercise of its revisional jurisdiction against an interim
B
order passed by the Andhra Pradesh Wakf Tribunal5.
4. The High Court vide the order under challenge also decided
Writ Petition Nos. 17192, 20372 and 20614 of 2007 filed in public interest
challenging the alienations made by the State or the Corporation. The
High Court gave liberty to these writ petitioners to approach the Wakf
Tribunal wherein suit filed by the Dargah Hazrath Hussain Shah 6 is C
pending consideration. The Dargah had challenged the alienations made
by the Corporation before the Wakf Tribunal. The present appeals are
thus filed by the State, the Corporation and the assignees from the State
and/or Corporation.
A. Background of Hyderabad State and its Administration D
immediately prior to accession and soon thereafter.
5. At the time of Independence, the British gave rulers of the
Princely States an option to join either of the two countries, India or
Pakistan or to remain independent. His Exalted Highness “The Nizam
of Hyderabad Mir Osman Ali Khan”7 declared his unwillingness to E
participate in the Constituent Assembly of both the countries on 11.6.1947.
Thereafter, “Operation Polo” was initiated by the Indian Army which
commenced on 13.9.1948. The Sovereign ultimately surrendered on
17.9.1948. The State of Hyderabad thereafter became part of the Union
of India. Major General J.N. Choudary, the General Officer Commanding F
in Chief Southern Army was appointed to be the Military Governor for
the Hyderabad State. The Sovereign issued a Farman8 on 19.9.1948
investing the Military Governor with the authority to administer the State
which was published in the Extra-Ordinary Gazette on Aban 20, 1357
Fasli, i.e., 20.9.1948. On 7.8.1949, by another Farman, the Sovereign
clarified that all authorities for the administration of the State would now G
4
For Short, “the Corporation”
5
For Short, the “Wakf Tribunal”
6
For Short, the “Dargah”
7
For Short, the ‘Sovereign’
8
Also Firman - the “Royal order” H
1242 SUPREME COURT REPORTS [2022] 19 S.C.R.
A vest with the Military Governor and that said authority included the
authority to make Regulations as well. Such Farman reads thus:
“19.9.1948
Whereas the General Officer Commanding in Chief Southern
Army has appointed Major General J.N. Choudary, O.B.E., to be
B the Military Governor for the Hyderabad State and whereas all
authority for the administration of the State now vests in him, I
hereby enjoin all the subjects of the State to carry out such orders
as he may deem fit to issue from time to time. I appeal to all
officers of the State administration and subjects of the State to
C render faithful and unflinching obedience to the Military Governor
and conduct themselves in a manner calculated to bring about the
speedy restoration of law and order in the State.”
“7.8.1949
With reference to my farman dated 19-9-1948, in which I referred
D to the fact that all authority for the administration of the State
now vests in the Military Governor, I hereby declare that the said
authority includes and has always included authority to make
regulations.”
6. Subsequently, on 1.12.1949, another Farman was issued by
E the Sovereign appointing Mr. M.K. Vellodi, I.C.S. to be his Chief Minister
and all the powers of administration which were vested in the Military
Governor before the said date were exercisable by the Chief Minister.
The said Farman reads as under:
“1.12.1949
F Whereas the General Officer Commanding in Chief Southern
Army has as from 1st December, 1949, terminated the appointment
of Major General Choudary, O.B.E., to be the Military Governor,
for the Hyderabad State;
And whereas it is necessary to make other arrangements for the
G administration of the State as from the said date;
Now, therefore, I hereby appoint as from the said date Mr M.K.
Vellodi, C.I.E., I.C.S., to be my Chief Minister and … I further
direct that all the powers of administration, vested in the Military
Governor before the said date are exercisable by the Chief
H Minister.”
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1243
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
7. The Military Governor in exercise of authority vested on him A
by the Sovereign introduced the Hyderabad (Abolition of Jagirs)
Regulation, 1358 Fasli9 to abolish jagirs and to provide commutation
and for payment of interim allowance to Jagirdars and Hissedars. The
statute titled as Regulations was published in the Extra-Ordinary Gazette
on 15th Mehir 1358 Fasli, i.e., 15.8.1949 AD. Later, the Chief Minister
B
as Sovereign introduced the Andhra Pradesh (Telangana Area) Jagirs
(Commutation) Regulation, 1359 Fasli10 i.e. 25.1.1950 to determine the
terms of commutation of jagirs after the termination of interim allowance
payable under the Abolition Regulation. The President certified two
Regulations, namely, Abolition Regulation and the Commutation
Regulation under Article 31(6) of the Constitution, as then existed, by C
a notification published in the Gazette of Union of India. On 18.6.1951,
Articles 31-A and 31-B and Schedule IX were incorporated and the
Abolition Regulation and the Commutation Regulation were included
in the Schedule IX. Thus, the above two Regulations shall not be
deemed to be void or ever to have become void on the ground that the
D
Regulations were inconsistent with or took away or abridged any of
the rights conferred by any of the provisions of Part III of the
Constitution.
8. The Hyderabad State had its last Nizam, His Exalted Highness
Mir Osman Ali Khan as Rajpramukh from 26 January 1950 to 31 October
1956. The General Elections were held in Hyderabad State on 27.3.1952 E
after the adoption of the Constitution of India on 26.1.1950. It was
thereafter that an elected Chief Minister took over on 6.3.1952 from
Mr. M.K. Vellodi. The elected Chief Minister held the office till the
creation of the State of Andhra Pradesh on 1.11.1956 by the States
Reorganisation Act, 1956, when the Telugu-speaking region of the State F
of Hyderabad was merged with Andhra State, Marathi speaking region
of Hyderabad State was merged with Bombay State and Kannada
speaking region with the Mysore State.
9. The validity of the Abolition Regulation and the Commutation
Regulation also came up for consideration before a Constitution Bench G
of this Court in a judgment reported as Sarwanlal v. State of Hyderabad
(Now Andhra Pradesh) & Ors.11, wherein this Court held as under:
9
For Short, the ‘Abolition Regulation’
10
For Short, the ‘Commutation Regulation’
11
AIR 1960 SC 862 H
1244 SUPREME COURT REPORTS [2022] 19 S.C.R.
A “11. Though by the delegation of authority, the Military Governor
was invested with all authority of His Exalted Highness the Nizam
in the matter of administration of the State in all its departments,
the sovereignty of His Exalted Highness the Nizam was, by this
act of delegation, undoubtedly not extinguished. It was open to
him, notwithstanding the delegation, to issue orders or regulations
B
contrary to those which were issued by the Military Governor,
and also to withdraw the authority of the Military Governor. There
is, however, no evidence on the record to show that after 19-9-
1948, and before the Abolition Regulation was promulgated, the
authority of the Military Governor was withdrawn or that His
C Exalted Highness the Nizam had issued any order or regulation
inconsistent with the Abolition Regulation. The authority of the
Military Governor was withdrawn in December 1949, and the
Chief Minister was invested with the same authority of
administration including expressly the power of legislation, and it
was in exercise of that authority that the Chief Minister issued
D
the Commutation Regulation.
12. The authority of His Exalted Highness the Nizam as the
sovereign ruler to resume the jagirs and to extinguish the interests
of the jagirdars being by delegation vested in the Military Governor,
the legality of the action of the latter was not open to challenge on
E any test of legislative competence. Assuming that no opportunity
had arisen for exercise of the sovereign authority in the matter of
resumption of jagirs or extinction of the jagirdars’ interests before
the promulgation of the Abolition Regulation, an inference cannot
therefrom arise that His Exalted Highness the Nizam had
F irrevocably placed a restriction on his sovereignty, or that the
delegation to the Military Governor of the sovereign authority was
subject to an implied restriction that the interests of the jagirdars
in the jagirs could not in exercise of the authority be extinguished.
13. The authority of the Military Governor, being unrestricted, so
G long as it enured, his action in issuing the Abolition Regulation
could not be challenged on the plea that it was a colourable exercise
of legislative authority. The doctrine of invalidity of legislative
provisions enacted in colourable exercise of authority applies to
legislatures whose powers are subject to constitutional restrictions.
When such a legislative body seeks, under the guise or pretence
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1245
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
of complying with the restrictions, in enacting a statute, to evade A
or elude them, it is but a fraud on the Constitution, and the statute
is liable to be declared invalid on the ground that the enactment is
in colourable exercise of authority, the statute being in truth beyond
the competence of the body. But a statute enacted by a legislative
authority whose powers are not fettered by any constitutional or
B
other limitations, cannot be declared invalid as enacted in colourable
exercise of its powers.
14. The authority of the Chief Minister under the Farman dated
December 1, 1949, in its amplitude, was as extensive as that of
His Exalted Highness the Nizam and the Commutation Regulation
C
was not liable to be challenged on the ground of want of legislative
competence or colourable exercise of legislative authority, the
power exercised by him being the legislative power as the delegate
of the Sovereign.”
10. This Court also held that the two Regulations are exempted
D
from any challenge on the ground that they are inconsistent with or
violative of Part III of the Constitution. Thus, the Abolition Regulation
and the Commutation Regulation are statutory, having been issued under
the Farman of the Sovereign before the Constitution came into force on
26.1.1950.
11. A Constitution Bench of this Court in a judgment reported as E
Sikander Jehan Begum v. A.P. State Govt.12 held that Military Governor
had all the authority for administration of the State and that such authority
delegated to him included and shall always be deemed to have included
the authority to make Regulations. The Military Governor exercised his
delegated powers of legislation as in-charge of the administration of F
Hyderabad State on behalf of the Sovereign. This Court held as under:-
“6. It appears that after the Military Governor was put in charge
of the administration of the State of Hyderabad, the Nizam issued
a firman on 19-9-1948, delegating to the Military Governor all the
authority for the administration of the State. Subsequently, by G
another firman he made it clear that the authority delegated to the
Military Governor included and shall always be deemed to have
included authority to make Regulations. This latter firman was
12
AIR 1962 SC 996 H
1246 SUPREME COURT REPORTS [2022] 19 S.C.R.
A issued on 7-8-1949. In due course, the Chief Minister took the
place of the Military Governor and the Nizam issued a firman on
1-12-1949, whereby all the powers of administration delegated by
him to the Military Governor were as from the date of the
notification terminated and the said powers were delegated to the
Chief Minister. That is how the Chief Minister was vested with
B
all the powers of administration which the Nizam possessed.
7. When the Military Governor was in charge of the administration
of Hyderabad State, he exercised his delegated powers of
legislation and promulgated several Regulations. One of these was
the Hyderabad (Abolition of Jagirs) Regulation, 1358-F. This
C
Regulation came into force on 15-8-1949. Broadly stated, the effect
of this Regulation was that all jagir lands were incorporated into
State lands as from the appointed day and their administration
stood transferred to the jagir Administrator who was to be
appointed by the Government. The Regulation made necessary
D provisions for making cash payments out of the net income of the
jagirs to the Jagirdar or Hissedars or maintenance holders. This
arrangement was intended to serve as an interim arrangement
pending the final disposal of the question about the commutation
to be paid for the Jagirs. This Regulation was followed a few
months later by the Hyderabad jagirs (Commutation) Regulation,
E 1359-F which came into force on 25-1-1950. By this Regulation,
provision was made for the payment of compensation by way of
the commuted value of the Jagir which had to be determined by
the Jagir Administrator in accordance with the relevant provisions
of the Regulation.”
F 12. Thus, we reiterate that the Military Governor and subsequently
the Chief Minister had all the legislative and executive powers as the
Sovereign had prior to his surrender on 19.9.1948, till the Constitution
came into force on 26.1.1950.
B. Background of Jagirs, Jagirdarsand the Jagir Abolition
G Regulation.
13. The Hyderabad State was facing heat by insurgents on one
hand and forces loyal to Sovereign on the other hand, even before
‘Operation Polo’ was conducted. The insurgency began in 1944-1945 in
Nalgonda and Warangal districts known as the Telangana area, in the
H east of Hyderabad State. The Sovereign appointed a Royal Commission
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1247
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
under the chairmanship of Sir Albion Rajkumar Banerji sometime in 1945 A
or 1946. One of the terms of reference was “the rights and obligations
of Jagirdars vis-à-vis the State and the Ruler’s subjects residing within
their jagirs”. In Chapter IV, the Commission dealt with the classification
of Jagirs and their nature. The Jagirs were of four kinds according to the
status of the holders and their powers of administration such as Paigahs; B
Ilaqas of the Premier Nobles; Samasthans; and Other Jagirs. The first
three category of jagirs are not relevant for the purpose of present
appeals.
1. In order to address the terms of reference, the Royal
Commission suggested codification of the Atiyat13 Law to decide all
C
disputes relating to succession in case of a deceased Jagirdar by special
courts called Atiyat Courts. It was thereafter, the Abolition and
Commutation Regulations were enacted by the Military Governor and
Chief Minister respectively under the authority of the Sovereign.
2. The other jagirs as mentioned in the Royal Commission were
of two kinds such as the exempted (Mustasna) and non-exempted Jagirs D
(Ghair Mustasna). A Mustasna jagir was exempted from the Diwani
jurisdiction. The power to declare a jagir as an exempted one or to take
away the privileges from an exempted Jagir rested with the Sovereign.
The Mashruti (conditional) and Ghair Mashruti (un-conditional) Inams
were regarded as traditional jagirs. The conditional grants were usually E
conditioned by some service “Khidmat” or other, whereas the
unconditional grants were those which were conferred as personal honors
in recognition of merit or past services rendered by the grantee or his
family.
3. The jagirs according to their nature fall in eight categories. The F
one that is relevant for present appeal is Madad Mash (personal grants
conditioned by maintenance), intended for the maintenance of the holder
and his family. The jagirs were either given in perpetuity or for the lifetime
of the grantee. After the death of each holder, an inquiry was conducted
to determine the next successor. All disputes relating to succession of a
G
deceased jagirdar were decided by Atiyat Courts. A Gashti (Circular)
No.19 of 1332 Fasli (19.3.1923) constituted a Directorate of Atiyat (crown
grants) to enquire and speedily dispose of disputes according to the
procedure in the courts of law under the revenue department. But revenue
13
A grant, stipend, or an allowance. H
1248 SUPREME COURT REPORTS [2022] 19 S.C.R.
A department continued to discharge itsrespective duties for the rest of
the work. The judicial matters which raised serious issues between the
parties involving the legal rights were to be taken out of the hands of the
administrative machinery and had to be dealt by the Directorate of Atiyat
under judicial procedure. Subsequently Circular No. 10 of 1338 F (1928)
B was issued which was repealed by Section 15 of the Atiyat Enquiries
Act. 14
14. One of us, Justice V. Ramasubramanian as a Judge of the
Andhra Pradesh High Court traced the history of questions relating to
land disputes in a judgment Raj Kishan Pershad and Ors. v. Joint
C Collector-I and Ors. 15. The High Courtnoted that the Abolition
Regulations were enacted in the year 1949, but they did not provide
solace to the peasants. Therefore, an Agrarian Reforms Committee was
set up in 1949 to examine the problem and to suggest remedies. It was
held as under:
“93. The lands in the erstwhile Hyderabad State (part of which
D
has now become Telangana), were broadly divided into two groups
namely (1) lands under the direct management of the Government,
the revenue from which went to the Government treasury (these
lands were called Diwani or Khalisa lands); and (2) the lands, the
revenue of which was wholly or partially assigned for some special
E purpose.
94. The lands of the second category were further sub-divided
into (i) Sarf-e-Khas lands, which formed part of the Nizam’s
property and which merged in Diwani in February, 1949 and (ii)
lands that were the subject of State grants and the revenue from
F which has been assigned wholly or partially as Jagir or Inam in
favour of some persons.
101. The Agrarian Reforms committee made its recommendations,
which were accepted by the Government headed by Mr. M.K.
Vellodi and an Act known as Hyderabad Tenancy and Agricultural
G Lands Act, 1950 was passed. This Act was described by some
economists and policymakers as having taken the lead in Land
Reforms in independent India…………….”
14
Source- AIR 1956 SC 319
15
H (2018) 6 ALT 79 (DB)
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1249
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
15. The Abolition Regulation came into force on 15.8.1949 when A
it was published in the Official Gazette. Section 4 abolished Jagirdars on
commencement of the Act whereas the transfer of jagir to Government
for administration of jagirs was contemplated by Section 5 of the Act.
The jagirdar was to handover the management of the jagirs to the Jagir
Administrator under sub-section (2) of Section 5. In terms of Section 6
B
of the Act, the jagir shall be included in the Diwani from the appointed
day and all powers, rights and liabilities of the jagirdar in relation to the
jagirs would cease to be exercisable and enforceable by or against the
Jagirdar and could only be done by/against the Jagir Administrator. The
relevant provisions of the statuteas part of agrarian reforms read thus:
“THE A.P. (T.A.) (ABOLITION OF JAGIRS) C
REGULATION, 1358 F.
No. LXIX of 1358 F
PART – I
PRELIMINARY D
xxx xxx xxx
(f) Jagir” includes a Paigah, Samasthan part of a jagir, village
Muktham village Agrahar, Umli an1d Mukasa whether granted
by a Ruler or a Jagirdar, and, as respects the period commencing
E
on the date appointed for a Jagir under Section 5, means the estate
therefore constituting a Jagir.
(g) “Jagir Administrator” means the Jagir Administrator appointed
under sub-section (1) of Section 3 and, subject to the rules under
this Regulation referred to in sub-section (2) of Section 3. All
F
references to the Jagir Administrator shall be read as including a
reference to an Assistant Jagir Administrator;
xxx xxx xxx
3. Appointment of Jagir Administrator :— (1) The
[Government] shall appoint a Jagir Administrator and as many G
Assistant Jagir Administrators as he considers necessary for the
due administration of this Regulation.
xxx xxx xxx
4. Appointment of Jagirdars to cease: - After the Commencement
of this Regulation, no person shall be appointed to be, or be H
1250 SUPREME COURT REPORTS [2022] 19 S.C.R.
A recognised as, a Jagirdar whether in succession to a deceased
Jagirdar or otherwise.
PART – II
TRANSFER OF ADMINISTRATION AND THE
CONSEQUENCES THEREOF
B
5. Appointment of dates for transfer of Administration: - (1) As
soon as may be after the commencement of this Regulation; the
Government shall appoint a date for the transfer to the Government
of the administration of jagirs and may appoint different dates for
different jagirs.
C
(2) On the date so appointed any jagir (hereinafter referred to as
the appointed day) the Jagirdar shall make over the management
of the jagir to the jagir Administrator and shall furnish him with an
account of the revenue received and expenditure incurred on
account of the jagir in the current, or, if Jagir Administrator so
D requires, in the immediately proceeding year of account, in so far
as such revenue and expenditure are attributable to that year.
xxx xxx
6. Powers, rights and liabilities as from the appointed day: - As
from appointed day-
E
(1) The jagir shall be included in the Diwani and unless and until
included in a district constituted under [the Andhra Pradesh
Telangana Area Land Revenue Act, 1317 F] shall be administered
by the Jagir Administrator;
F PART – IV
MISCELLANEOUS
xxx xxx xxx
16. Special provision for Jagirs granted to temples, etc: - The
G provisions of this Regulation shall apply so far as may be to any
jagir granted to a temple or mosque or to any institution established
a religious or public purpose.
Provided that in the case of such jagir-
(a) the percentage of the gross revenue to be paid to
H Government shall, notwithstanding anything contained in
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1251
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
Section 8, be such percentage not exceeding ten as the A
Government may by notification in the Official gazette direct
either generally or in respect of a particular jagir or a particular
class of jagirs:
(b) the distribution or application of the net income shall be
effected in accordance with the rules made under this B
Regulation which shall be so framed as to respect so far as
possible the wishes of the grantor and to be in consonance
with custom and usage.”
16. The Commutation Regulation came into force on 25.1.1950
providing commutation of the amount of maintenance after termination C
of the interim allowance payable in terms of Section 14 of the Abolition
Regulation. The relevant extract from the said statute reads thus: -
“THE A.P. (T.A.) JAGIRS (COMMUTATION)
REGULATION, 1359 F.
NO. XXV OF 1359 F. D
xxx xxx xxx
10. Special Provision for jagirs granted for the support of service
of Religious and Charitable institutions.
(1) The provision of this Regulation shall apply so far as may be,
E
to any jagir granted-
(a) in the name or for the support of any religious or charitable
institution; or
(b) to any person for the purposes of any service or, charity,
such service or charity being of a public nature connected with F
any religious or charitable institution.
(2) The Government shall pay to the institution every year
commencing from the 1 st April 1950 for the service of the
institution, so long as it exists-
(i) in the case mentioned in clause (a) of sub-section (1) an G
amount equivalent to 90 percent of the gross basic sum referred
to in Section 4; and
(ii) in the case mentioned in clause (b) of sub-section (1) an
amount equivalent to 50 percent of the gross basic sum referred
to in Section 4. H
1252 SUPREME COURT REPORTS [2022] 19 S.C.R.
A The person referred to in clause (b) of sub-section (1) shall
thereupon stand release of the liability to render any service or
charity, but shall be entitled to receive a commutation sum as may
be determined under this Regulation.
(3) The application of the amounts paid to a religious or charitable
B institution under sub-section (2) shall be effected in such manner
as may be prescribed.
Explanation :— In this section-
(a) “religious institution” means any religious establishment such
as temple, shrine, mosque, darga or the like with a specific location
C and known address which is dedicated to, or used as of right by,
the general public or any community or section thereof as a place
of public religious worship;
(b) “charitable institution” means by charitable establishments,
with a specific location and known address which is dedicated to,
D or for the benefit of, or used as of right by, the general public or
any community, or section thereof, for any pious, charitable or
philanthropic purpose.
17. Thus, by the Abolition Regulation, all jagir lands were
incorporated into the State lands and the administration of all the jagirs
E was to be transferred to a Jagir Administrator who had to be appointed
by the Government (as per Sections 5 and 6). The statute provided for
interim maintenance allowance until commutation for jagirs was
determined (Section 14). From that date, the Jagirdars or Hissedars or
maintenance holders were only to get cash payments out of the net
F annual income of the jagirs worked out in accordance with the provisions
of that Regulation (Section 6). It was specifically provided that if a
Jagirdar or Hissedar dies, his share in the net income shall devolve in
accordance with his personal law (Section 6(8)), abrogating thereby the
previous law that the succession to the jagir depended entirely on the
recognition or regrant thereof by the Nizam. Such share however was
G not alienable without previous sanction of Government (Section 6(7)).
Thus, in effect, the original jagir tenure as such was abolished and under
these Regulations, a hereditary but inalienable personal right to receive
a portion of the net income thereof by way of interim maintenance was
substituted.
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1253
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
C. The Andhra Pradesh (Telangana Area) Atiyat Enquiries A
Act, 1952
18. The Hyderabad Atiyat Enquiries Act, 195216 was published in
Gazette No. 21 on 14th March 1952. Later, some amendments were
carried out by the Hyderabad Atiyat Enquiries (Amendment) Act, 1956
(Act No. XXVIII of 1956). Such amending Act was published on 5th B
September 1956. The title of the Act now stands as The Andhra Pradesh
(Telangana Area) Atiyat Enquiries Act, 1952. The relevant provisions
for the purpose of the present appeals read thus:
“(1) In this Act unless there is anything repugnant in the subject
or context- C
(a) “Atiyat Court” means a Court or authority competent to
make Atiyat enquiries and enquiries as to claims to
succession to and any right, title or interest in Atiyat grants
and matters ancillary thereto;
*[(b) “Atiyat grants” mean- D
(i) in the case of jagirs abolished under [the Telangana
(Abolition of Jagirs) Regulation, 1358F.] the commutation
sums payable in respect thereof under [the Telangana Jagirs
(Commutation) Regulation, 1359 F.];
E
(ii) inams to which [the Telangana Abolition of Inams Act, 1954]
is not applicable;
(iii) in the case of inams abolished under [the Telangana
Abolition of Inams Act, 1954] the compensation payable
under that Act;]
F
xxx xxx xxx
(c) “Muntakhabs and Vasiqas” means documents issued by
competent authorities as a result of Inam or succession
enquiries held under the Dastoor-ul-Amal Inams or other
Government orders on the subject and issued by way of G
continuance or confirmation of Atiyat grants;
(d) “Holding an Atiyar grant” means the enjoyment of the Atiyat
grant on the basis of a Muntakhab, a Vasiqa or any order of
a competent authority;
16
For Short, the “Enquiries Act” H
1254 SUPREME COURT REPORTS [2022] 19 S.C.R.
A General Provisions as to Atiyat Grants.
2. All Atiyat grants shall, subject to provision of [the Telangana
(Abolition of Jagirs) Regulation, 1358F.], the Hyderabad
Abolition of Cash Grants Act, 1952 (XXXIII of 1952) and
[the Telangana Abolition of Inams Act, 1954], continue to
B be held by the holders thereof subject to the conditions laid
down in the Muntakhabs or Vasiqas, if any, relating thereto
and to the provisions of this Act.
3. *[Continuance of Atiyat grants:- All Atiyat grants shall,
subject to the provisions of the Andhra Pradesh (Telangana
C Area) (Abolition of Jagirs) Regulation, 1358 F., the
Hyderabad Abolition of Cash Grants Act, 1952 (XXXIII of
1952) and the Andhra Pradesh (Telangana Area) Abolition
of Inams Act, 1954 continue to be held by the holders thereof
subject to the conditions laid down in the Muntakhabs or
Vasiqas, if any, relating there to and to the provisions of this
D Act.
3-A. (1) In the case of Atiyat grants specified in sub-clause (i)
of clause (b) of sub-section (1) of section 2, Atiyat enquiries
and enquiries as to any right, title or interest therein shall,
notwithstanding anything contained in [the Telangana
E (Abolition of Jagirs) Regulation, 1358 F.], be held in Atiyat
Courts in accordance with the provisions of this Act, and in
the course of such Inquiries, Atiyat Courts shall also be
competent to enquire into claims to succession arising in
respect of such grants:
F Provided that claims to succession arising after the
completion of Atiyat Enquiry of any such grant shall not be
entertained in any Atiyat Court and all such claims shall be
filed in and decided by the competent Civil Court.
(2) In the case of Atiyat grants specified in sub-clauses (ii)
G to (vi) of clause (b) of sub-section (1) of section 2, all Atiyat
enquiries, enquiries as to claims to succession to, or any
right, title or interest therein and matters ancillary thereto
shall be held in Atiyat Courts in accordance with the
provisions of this Act.]
xxx xxx xxx
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1255
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
Constitution of Atiyat Courts, their jurisdiction and A
procedure.
12. *[(1)] In so far as questions of succession, legitimacy,
divorce or other questions of personal law are concerned,
the final decision of a Civil Court shall be given effect to by
the Atiyat Court established under this Act on the decision B
being brought to its notice by the party concerned or
otherwise irrespective of whether the decision of the Atiyat
Court was given before or after the decision of the Civil
Court.
[(2) If in the course of any Enquiry as to claims to C
succession, any dispute arises involving questions of
succession, legitimacy, divorce or other questions of personal
law, the Atiyat Court shall direct the parties to get the dispute
decided in the competent Civil Court. On the production of
the final decision of the Civil Court, the Atiyat Court shall
give effect to such decision.] D
xxx xxx xxx
*[16. The provisions of this Act, shall cease to be applicable-
(a) to an Atiyat grant specified in sub-clause (i) of clause
(b) of sub-section (1) of section 2 when the commutation E
sum has ceased to be payable;
(b) to an Atiyat grant specified in sub-clause (iii) of
clause (b) of sub-section (1) of section 2, when the
compensation has ceased to be payable;
(c) to an Atiyat grant specified in sub-clause (v) of clause F
(b) of sub-section (1) of section 2, when such grant has
ceased to continue;
(d) to an Atiyat grant specified in sub-clause (vi) of
clause (b) of sub-section (1) of section (2), when the
compensation has ceased to be payable]. G
* Substituted by Act No. XXVIII of 1956"
22. This Court in Raja Ram Chandra Reddy & Anr. v. Rani
Shankaramma & Ors.17, was considering the question of title to the
17
AIR 1956 SC 319 H
1256 SUPREME COURT REPORTS [2022] 19 S.C.R.
A grant or recognition by the Sovereign according to Atiyat Law of
Hyderabad. It was held that the original jagir tenure was abolished and
from the time of commencement of the Abolition Regulation, the Jagirdars
or Hissedars or maintenance holders were only to get cash payments
out of the net annual income of the jagir worked out in accordance with
the provisions of Section 6. The share of Jagirdar or Hissedar after his
B
death, shall devolve in accordance with his personal law, abrogating
thereby the previous law that the succession to the jagir right depended
entirely on the recognition or regrant by the Nizam. The question examined
therein was as to whether the order of Chief Minister was protected by
sub-clause (2) of Section 13 of the Enquiries Act having been passed by
C the Sovereign under his authority. This Court held as under:
“5. The police action in Hyderabad took place in September, 1948.
After its termination a series of legislative measures were enacted
by the Military Governor by virtue of power conferred on him by
a Firman of the Nizam dated 20-9-1948.
D One of these measures is the Hyderabad (Abolition of
Jagirs) Regulation, 1358F. (Regulation No. LXXIX of 1358 F.)
which came into force on 15-8-1949. By this Regulation, broadly
speaking, all Jagir lands were incorporated into State lands as
from the appointed day and the administration of all the Jagirs
E was to stand transferred to a Jagir Administrator to be appointed
by the Government (Sections 5 and 6).
From that date the Jagirdars or Hissedars or maintenance
holders were only to get cash payments out of the net annual
income of the Jagirs worked out in accordance with the provisions
F of that Regulation (S. 6). This was to be by way of interim
maintenance allowance until commutation for Jagirs is determined
(S. 14).
It was specifically provided that if a Jagirdar or Hissedar
dies, his share in the net income shall devolve in accordance with
G his personal law (S. 6(8)) abrogating thereby the previous law
that the succession to the Jagir right dependent entirely on the
recognition or regrant thereof by the Nizam. Such share however
was not alienable without previous sanction of Government (S.
6(7)).
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1257
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
It was also provided after the commencement of the A
Regulation no person shall be appointed to be, or be recognised
as, a Jagirdar whether in succession to a deceased Jagirdar or
otherwise (S. 4). Thus in effect the original Jagir tenure as
such was abolished and under this Regulation a hereditary
but inalienable personal right to receive a portion of the net
B
income thereof by way of interim maintenance was
substituted.……”
D. The Andhra Pradesh (Telangana Area) Abolition of Inams
Act, 1955.
23. The Andhra Pradesh (Telangana Area) Abolition of Inams C
Act, 195518 was enacted for abolition of inam lands gifted or given by
way of grant by the Sovereign or by a jagirdar etc. Some of the relevant
provisions from the Inams Abolition Act read thus:-
“The Andhra Pradesh (Telangana Area) Abolition of Inams
Act, 1955 D
(Act No. VIII of 1955)
CHAPTER I
Preliminary
xxx xxx xxx E
(c) “inam” means land held under a gift or a grant made by the
Nizam or by any Jagirdar, holder of a Samsthan or other competent
grantor and continued or confirmed by virtue of a muntakhab or
other title deed, with or without the condition of service and coupled
with the remission of the whole or part of the land revenue thereon F
and entered as such in the village records and includes-
(i) arazimakhta, araziagrahar and seriinam; and
(ii) lands held as inam by virtue of long possession and
entered as inam in the village records: G
Provided that in respect of former Jagir areas, the expression
inam shall not include such lands as have not been recognised as
inams by the Government after the abolition of the Jagirs.
18
For Short “the InamsAbolition Act” H
1258 SUPREME COURT REPORTS [2022] 19 S.C.R.
A (d) “inamdar” means a person holding an inam or a share therein,
either for his own benefit or in trust and includes the successor in
interest of an inamdar, and
(i) where an inamdar is a minor or of unsound mind or an idiot,
his lawful guardian;
B (ii) where an inamdar is a Joint Hindu family, such Joint Hindu
family;
CHAPTER II
Abolition and vesting of inams and
C the consequences thereof
Section 3. Abolition and vesting of inams and the
consequences thereof :—(1) Notwithstanding anything to the
contrary contained in any usage, settlement, contract, grant, sanad,
order or other instrument, Act, regulation, rules or order having
D the force of law and notwithstanding any judgment, decree or
order of a Civil, Revenue or Atiyat Court, and with effect from
the date of vesting, all inams* [to which this Act is made applicable
under sub-section (2) of section 1 of this Act] shall be deemed to
have been abolished and shall vest in the State.
E *[Omitted by Amendment Act No. 29 of 1985]
(2) Save as expressly provided by or under the provisions of this
Act and with effect from the date of vesting the following
consequences shall ensue, namely:
(a) the provisions of the Land Revenue Act, 1317 Fasli
F relating to inams, and the provisions of the Andhra Pradesh
(Telangana Area) Atiyat Inquiries Act, 1952, Act X of 1952
and other enactments, rules regulations and circulars in force
in respect of Atiyat grants shall, to the extent, they are
repugnant to the provisions of this Act, not apply and the
G provisions of the Land Revenue Act, 1317 Fasli, relating to
unalienated lands for purposes of land revenue, shall apply
to the said inams;
[Amended by AP Act IX of 1961]
xxx xxx xxx
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1259
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
(3) Nothing contained in sub-sections (1) and (2) shall operate A
as a bar to the recovery by the inamdar of any sum which
becomes due to him before the date of vesting by virtue of his
rights as inamdar and any such sum shall be recoverable by him
by any process of law, which, but for this Act, would be available
to him.
B
CHAPTER III
Determination, Apportionment and Payment of
Compensation
Section 12. Determination of compensation payable to the
inamdar :— The compensation payable to the inamdar for the C
inams abolished under Section 3 shall be the aggregate of the
sums specified below:—
(i) in respect of inam lands registered in the name of the inamdar
and kabiz-e-kadim under Sections 4 and 5, a sum equal to twenty
times the difference between land revenue and judi or quit- D
rent;
(ii) in respect of income accruing to the inamdar from the
lands registered in the names of his permanent tenant,
protected tenant and non-protected tenant a sum equal to
sixty per cent of the premium charged, as the case may be, E
under Sections 6, 7 and 8.
xxx xxx xxx
Section 15. Payment of compensation:— (1) The
compensation shall be due as from the date of vesting and shall
F
carry interest at the rate of two and three-fourths per cent per
annum from the date of vesting to the date of payment.
(2) The compensation payable under this Act may, in accordance
with rules made in this behalf, be paid in one or more of the
following modes, namely:-
G
(i) in cash in full or in annual instalments not exceeding ten;
(ii) in bonds either negotiable or not negotiable carrying interest
at the rate specified in sub-section (1) and of guaranteed
face value maturing within a specified period not exceeding
ten years. H
1260 SUPREME COURT REPORTS [2022] 19 S.C.R.
A E. Historical background of Wakf in the context of State of
Hyderabad.
24. Justice S.I. Jafri in his book “Waqf Laws in India” published
in 2015 has explained that a Waqf is an unconditional and permanent
dedication of property with implied detention in the ownership of God in
B such a manner that the property of the owner may be extinguished and
its profit may revert to or be applied for the benefit of mankind, except
for purposes prohibited by Islam. The following are some of the
characteristics of a Wakf:
“4. Essential requisites of a waqf. – Under the Muslim law a
C waqf means dedication by a person embracing the Muslim faith
of any property for any purpose recognised by the Muslim law as
religious, pious or charitable. The dedication must be permanent
and by the owner of the property who by reason of such dedication
of the property should divest himself of such property and hand
D over the possession thereof to the mutawalli. (Durr., 333; Prince
of Arcot Endowments Estate v. Ponnuswami Nattar, A.I.R. 1955
N.U.C. 3924 at p. 3925 (Mad.).; Mofizuddin Howlader v. Abdur
Rashid, (1983) 34 Dhaca Law Reports 36 (S.C.)).
It is a settled position of law with regard to the Waqfs that
E the Waqfs may be divided into two classes, i.e. (1) public and (2)
private. A public Waqf is one for a public, religious or charitable
object. A private Waqf is one for the benefit of the settlor’s family
and his descendants, and is called Waqf-alal-aulad. At one time, it
was considered that there must be a dedication of the property to
constitute a valid Waqf solely to the worship of God almighty him
F
or for religious or charitable purposes. (Mian Sahataz Pir v. Sk.
Ahmed, 2013 (1) O.L.R. 898 at p. 904 (Orissa)).
The Waqif got himself divested of the property, the moment
waqfnama was executed and registered and named himself as
G mutawalli as before his death he used to spend money for religious
purposes recognised by the Muslim Law, such as, sending persons
for Haj, incurring expenditure for burial of poor Muslim persons
and also for conversion. (Assam Board of Waqf v. Khaliquor
Rahman, 1994 (1) Civil L.J. 684 p. 692 (Gau.):1994(1) G.L.R. 28
at p. 29.)
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1261
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
The property whether movable or immovable must belong A
to the waqf. A waqf is void for uncertainty. The waqf can be
created vivos of by a deed or by a will and if it is created by a
deed and the property is immovable, and worth more than Rs.
100/-, it has to be registered. A waqf can be revoked only if it is
made by a will and such revocation must be any time before death
of a waqif. As soon as the waqf is created, the property at once B
passes to the God and neither it can be revoked nor the God can
be divested from the property and the waqf, even if there is any
subsequent breaches of the terms of the waqf or abuse by the
mutawalli of his office. It is also immaterial whether provisions of
the waqf are carried out or not for that it is a matter of breach of C
trust only. It is also immaterial whether in case of immovable
property whether the property was mutated in the name of waqf
or personal name of the mutawalli in the revenue record. (Assam
Board of Waqf v. Khaliquor Rahman, 1994 (1) Civil L.J. 684 p.
692 (Gau.):1994(1) G.L.R. 28 at p. 29.)”
25. There was no particular law dealing with Wakf or management D
of Wakf property prior to enactment of The Wakf Act, 195419 in the
erstwhile area governed by the Sovereign. The Hyderabad Endowment
Regulations20 were sanctioned by the Sovereign on 16th Shahban 1358
Hijri (1349 Fasli and 1940 AD) and the same were also published in the
Government Gazette (Volume 71, M 6). The said Regulations were in E
respect of management and security of endowed property which was
included in the duties of the Government. The relevant extract from
such Regulations reads thus:
“Whereas the management and security of endowed property is
included in the duties of Government therefore it is felt necessary
F
that some principle should be adopted so that these duties may be
discharged conveniently and efficiently and the intention of the
person endowing the property that humanity should be benefited
through the endowed property may be realized. Therefore the
following rules are framed:-
1. These regulations will be known as “Endowment G
Regulations” and will come into force throughout the dominions
of H.E.H. from the date of publication in the Gazette (Jarida
Alamia).
19
For Short “the 1954 Act”
20
Endowment Regulations H
1262 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Definitions.
2. Unless there be something repugnant in the subject or context.
Endowment: With the exception of the property coming under the
description of estate subject to the condition of service (Maash
Mashruthul Khidmath) every transfer of property which any person
B may have made for religious purpose or for purposes of charity or
public utility will be called “Endowment”.
Endowment Property: The property which is transferred in this
way will be called “Endowed Property.”
Endower: The person transferring the property in this way will
C be called the “Endower” (Vaqif).
Kitab-ul-Avkhat (Book of Endowment): Means every such
register in which all the estates or properties endowed under this
Act are entered.
Maash Mashruthul Khidmat (Estate Subject to the condition of
D service): Means the estate which has been conferred by the Ruling
Sovereigns or the Governments of the time for religious purposes
or for purposes of public utility and which has been held by
Government in the department concerned as subject to the
condition of rendering of service.
E Kitab Maashhai Mashruthul Dhidmath (sic Khidmat) (book
of estates subject to the condition of service): Means the register
in which estates subject tit e condition of service under this Act
are entered”
26. Rule 445 of the Rules relating to Endowment promulgated
F and published in the Government Gazette (Volume 77, M 45) in
terms of Section 16 of the abovesaid Act reads thus:
“445. Grants subject to the condition of service being royal grants
will not be regarded as endowed property nor can proceedings be
adopted for registration with regard to them.
G
xxx xxx
447. The institution connected with the conditional Grant (Mash)
to be regarded as endowed
i. Estates subject to the condition of service relating to the
H Institution connected with the conditional grants (Mash) will he
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1263
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
regarded as endowed and proceedings will be adopted in A
accordance with these rules for entering the said estates in the
Book of Endowments.
ii. Whatever other properties there may be connected with the
institution they will all be regarded as endowed and proceedings
will be adopted according to these rules for their being entered in B
the book of endowments.”
27. Section 69 of the 1954 Act as was originally enacted repealed
The Bengal Charitable Endowments, Public Buildings and Escheats
Regulations, 1810 (Bengal Regulation XIX of 1810), Section 5 of the
Religious Endowments Act, 1863 (XX of 1863), The Charitable C
Endowments Act, 1890 (VI of 1890), The Charitable and Religious
Trusts Act, 1920 (XIV of 1920) and The Mussalman Wakf Act, 1923
(XLII of 1923). Thus, these Acts would not be applicable to any Wakf
to which the 1954 Act was made applicable. Sub-section (2)
contemplates that if immediately before commencement of the Act, in
any State, there is in force any law which corresponds to this Act, D
such law shall stand repealed.
28. By Central Act No. 34 of 1964, clause (ii) was modified in
Section 3(l) of the 1954 Act. The definition of Wakf after such amendment
reads thus:
E
(l) “wakf” means the permanent dedication by a person professing
Islam [or any other person] of any movable or immovable property
for any purpose recognised by the Muslim law as pious, religious
or charitable and includes—
(i) a wakf by user; F
(ii) grants (including Mashrut-ul-khidmat for any purpose
recognised by the Muslim law as pious, religious or charitable;
and
(iii) a wakf-alal-aulad to the extent to which the property is
dedicated for any purpose recognised by Muslim law as pious, G
religious or charitable;…”
29. The 1954 Act was then amended in 1984 (Amending Act No.
69 of 1984) but none of the provisions of the said Act were notified to
come into force. Hence, the amendments made by such Act never became
effective as part of the 1954 Act. H
1264 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 30. The 1954 Act was later repealed by the Wakf Act, 199521 and
thereafter amended by The Wakf (Amendment) Act, 2013. Since the
issues in the present matter pertain to the period prior to 2013, the relevant
statutory provisions as were then in existence and as stated to be applicable
in the present appeals by the learned counsel for the parties, are
reproduced as under:
B
“3. Definitions- In this Act, unless the context otherwise requires-
(c) “Board” means a Board of Wakf established under sub-section
(1), or as the case may be, under sub-section (2) of section 13
and shall include a common Wakf Board established under section
C 106;
xx xx xx
(g) “list of wakfs” means the list of wakfs published under sub-
section (2) of section 5;
D xx xx xx
(k) “person interested in a wakf” means any person who is entitled
to receive any pecuniary or other benefits from the wakf and
includes—
xx xx xx
E (p) “Survey Commissioner” means the Survey Commissioner
of Wakf appointed under sub-section (1) of Section 4 and includes
any Additional or Assistant Survey Commissioners of Wakfs under
sub-section (2) of Section 4;
(q) “Tribunal”, in relation to any area, means the Tribunal
F constituted under sub-section (1) of Section 83, having jurisdiction
in relation to that area;
(r) “wakf” means the permanent dedication by any person, of
any movable or immovable property for any purpose recognised
by the Muslim law as pious, religious or charitable and includes—
G
(i) a wakf by user but such wakf shall not cease to be a wakf
by reason only of the user having ceased irrespective of the
period of such cesser;
21
H For Short “1995 Act”
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1265
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
(ii) “grants”, including mashrat-ul-khidmat for any purpose A
recognised by the Muslim law as pious, religious or charitable;
and
(iv) a wakf-alal-aulad to the extent to which the property is
dedicated for any purpose recognised by Muslim law as pious,
religious or charitable, B
and “wakif” means any person making such dedication;
4. Preliminary survey of wakfs – (1) The State Government
may, by notification in the Official Gazette, appoint for the State a
Survey Commissioner of wakfs and as many Additional or
C
Assistant Survey Commissioners of wakfs as may be necessary
for the purpose of making a survey of wakf in the State.
(2) All Additional and Assistant Survey Commissioners of Wakf
shall perform their functions under this Act under the general
supervision and control of the Survey Commissioner of Wakfs.
D
(3) The Survey Commissioner shall, after making such enquiry as
he may consider necessary, submit his report, in respect of wakfs
existing at the date of the commencement of this Act in the State
or any part thereof, to the State Government containing the
following particulars, namely:—
E
(a) xxx xxx
(4) xxx xxx
(6) The State Government may, by notification in the Official
Gazette, direct the Survey Commissioner to make a second or
subsequent survey of wakf properties in the State and the F
provisions of sub-sections (2), (3), (4) and (5) shall apply to such
survey as they apply to a survey directed under sub-section (1):
Provided that no such second or subsequent survey shall be
made until the expiry of a period of twenty years from the date on
which the report in relation to the immediately previous survey G
was submitted under sub-section (3).
5. Publication of list of wakf. – (1) On receipt of a report under
sub-section (3) of Section 4, the State Government shall forward
a copy of the same to the Board.
H
1266 SUPREME COURT REPORTS [2022] 19 S.C.R.
A (2) The Board shall examine the report forwarded to it under sub-
section (1) and publish in the Official Gazette a list of Sunni wakf
or Shia wakfs in the State, whether in existence at the
commencement of this Act or coming into existence thereafter, to
which the report relates, and containing such other particulars as
may be prescribed.
B
xx xx xx
32. Powers and functions of the Board. – (1) Subject to any
rules that may be made under this Act, the general superintendence
of all wakf in a State shall vest in the Board established or the
C State; and it shall be the duty of the Board so to exercise its powers
under this Act as to ensure that the wakf under its superintendence
are properly maintained, controlled and administered and the income
thereof is duly applied to the objects and for the purposes for which
such wakfs were created or intended:
Provided that in exercising its powers under this Act in respect
D
of any wakf, the Board shall act in conformity with the directions
of the wakf, the purposes of the wakf and any usage or custom
of the wakf sanctioned by the school of Muslim law to which
the wakf belongs.
Explanation.—For the removal of doubts, it is hereby declared
E
that in this sub-section, “wakf” includes a wakf in relation to which
any scheme has been made by any court of law, whether before
or after the commencement of this Act.
(2) Without prejudice to the generality of the foregoing power, the
functions of the Board shall be—
F
xx xx xx
(h) to take measures for the recovery of lost properties of any
wakf;
xx xx xx
G (m) to inspect, or cause inspection of, wakf properties, accounts,
records or deeds and documents relating thereto;
(n) to investigate and determine the nature and extent of wakf
and wakf property, and to cause, whenever necessary, a survey
of such wakf property;
H xx xx xx
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1267
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
40. Decision if a property is wakf property. – (1) The Board A
may itself collect information regarding any property which it has
reason to believe to be wakf property and if any question arises
whether a particular property is wakf property or not or whether
a wakf is a Sunni wakf or a Shia wakf it may, after making such
enquiry as it may deem fit, decide the question.
B
(2) The decision of the Board on a question under sub-section (1)
shall, unless revoked or modified by the Tribunal, be final.
(3) xxx XXX
(4) xxx xxx
C
xx xx xx
105. Power of Board and Chief Executive Officer to require
copies of documents, etc., to be furnished. – Notwithstanding
anything contained in any law for the time being in force, it shall
be lawful for the Board or the Chief Executive Officer to require D
any person having the custody of any record, register, report or
other document relating to a wakf or any immovable property,
which is wakf property, to furnish subject to the payment of
necessary costs, copies of, or extracts from, any such record,
register, report or document and every person to whom such a
requisition is made, shall furnish, as soon as may be practicable, E
to the Board or Chief Executive Officer copies or extracts from
the required record, register, report or other document.
F. Facts leading to the present appeals.
i) Order of Nizam Atiyat Court
F
31. In the present matter, one Akbar Husaini sought an inam Inquiry
to the maash22 of Jagir villages including the village Manikonda on 12th
Ardibehisht 1333 fasli (17.3.1923). Akbar Husaini again submitted a plaint
on 9th Amardad 1336 Fasli (15.6.1926) after Syed Akbar Husaini was
asked to submit plaint on 29th Khurdad 1336 F (4.5.1926). Jagir village
of Manikonda was claimed to be amaash land. Nizam Atiyat decided G
such Inquiry on 31.5.1957 in File No. 2/56. This is the document which
is the primary basis of claim of the Wakf Board. The relevant extract
from the order reads thus:
22
Also Mash- “the property or the grant” H
1268 SUPREME COURT REPORTS [2022] 19 S.C.R.
A “Order
The arguments of the parties and the Government Pleader
were heard on 9th April, 1957.
The plaint of Akbar Husaini filed on 9th Amardad, 1336 F
B claims confirmation of the following mashes as service maash of
Dargah of Hazrat Husain Shah Wali:-
1. Gontapalli Village
2. Manikonda Village
C 3. Rayadurg Village (half) Known as Maoza Dargah
Shareef
4. Makhta and Arazi Inam Shekhpet village Survey Nos.
320, 324 acres, 3 guntas
D 5. AraziInam (Khankash in Qila Mohammadnagar 3
acres Rs. 10/-
An Uzardari was filed by Ahmedullah Husaini on 12-2-37
alleging that the maash was not Mashrut, but only zar-khareed
and hence the shareholders were entitled to sharaee shares in the
E maash.
In view of the facts of the case and the pleadings of parties
the following issues require a decision:-
1. Is the grant of jagirs and other maash covered by
F valid sanads and can these be confirmed as Mashrutul
khidmat maash in the name of the present claimant
(incidentally, it will have to be examined how far the
contention of the Hzardars in respect of the nature
of the maash, being zar-khareed is tenable).
G 2. Possession and enjoyment of the claimants over the
maash.
3. The relationship of the present claimants and objection
petitioners to the original grantee.
H 4. The relief to which the respective parties are entitled.
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1269
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
ISSUE NO.1: Jagir villages A
(a) Gontapalli village ……..
(b) MANIKONDA: The petitioner relies mainly on the
marginally noted documents# and orders in support of his
claim for this village as a Mashrut Jagir conditional on
service to Dargah. B
# 1. Copy of Ehkam of Nawab Mukhtarul-Mulk dated
1249.
2. Letter of H.S. No. 75 dated 14th Azur, 1308F.
3. Letter of Daftar-e-Mal 2 of 13 th Azur, 1320F, in C
verification of the No.1.
4. Ehkam of Nawab Mukhtarul-Mulk dated 16 th Rabiul-
Awal 1275 H. regarding Guntapalli.
It should also be noted that the inam Enquiry of this village
was conducted in Diwani and after completion of proceedings an D
Inam Statement was prepared by the First Taluqdar on 19 th
Amardad, 1320 Fasli for sanction of higher authorities. But on
account of controversy between Diwani and S.K.23 on the
question of jurisdiction no final decision was recorded on the
statement. In the Enquiry in Diwani Atiyat Courts this village
E
Manikonda was recommended to be confirmed as a
Mashrutul-khidmat jagir for services to the Dargah in the
name of the Sajjada of the time, Syed Akbar Husaini. But
since the question of confirmation is now before this Court it
is necessary to examine the evidence and record with a view
to arrive at an independent decision on the question of the F
nature of maash namely whether it was granted as a
Mashrutmaash or was a zar-khareed property.
xxx xxx xxx
th
……… The Ahkam dated 16 Babul-Awal, 1275 H in
respect of the grant of Gontapalli jagir clearly mentions Manikonda G
Jagir as conditional on Ood-u-Gul24. Hence there is no strength in
the contention that the Jagir Manikonda was self-acquired property
23
“Sarfe Khas- private property of Sovereign”
24
Incense and flowers H
1270 SUPREME COURT REPORTS [2022] 19 S.C.R.
A and not an Atiya Shahi grant. Whatever may have been the nature
of the maash when it was acquired, it was converted into, and
was confirmed as a conditional Atiya Shahi Grant and treated as
such by competent Atiyat authorities of the time. Hence, I
entertain no doubt as to the nature of the Jagir Manikonda
being a Mashrutatiya shahi grant for the service of Dargah
B
of Husain Shah Wali. The kaifiatjagirdaranmentions this
village as conditional jagir. The Firman of the Nizam dated
14th Azur, 1378 Fasli and 1st Ramzan, 33 H also confirmed this
jagir as a conditional jagir for the service of Dargah.
The fact that the jagirs were mortgaged to Hasan Bin Mohsin on
C 1st Rajab, 1296 H with the sanction of Nawab Viqarul-umara
Ameer-e-Kabeer25 also confirms the conditional nature of the
maash. Otherwise, no permission of the Madarul Maham was
necessary if the property was zar-khareed as alleged.
xxx xxx xxx
D As regards the issue no.2 regarding possession over the
village of Guntapalli and Manikonda etc. and the lands in Shaikpet
and Rayadrug etc. it is established from records since a long time.
The jagir villages and other properties have also been the subject
of prolonged litigation between the qabiz and hissedars in the civil
and Atiyat Courts, ever since the of Mukhtarulmulk Bahadur. In
E
recent years the jagirs were under the supervision of a committee
appointed by S.K. from 1343 to 1348 F on the death of Syed
Akbar Husaini and thereafter it was under C.W. 26 until it was
released from the C.W. only in 1956 through letter No. 545 dated
29-5-56. Hence the maash is confirmed as follows:
F 1. Villages Manikonda and Guntapally with all items of
Revenue inclusive of Excise as conditional on service to
Dargah.
2. xxx xxx xxx.
Issue No.3 :- The Shijra or family tree as filed by the parties in the
G
case and given in the summary of the case above is admitted by
all parties. Their respective shares in the 1/3rd Biradari portion
Mashrut-ul-Khidmatmaash viz., jagir village of Guntapally and
25
Minister
26
H Court of Wards
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1271
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
Manikonda shall be worked out separately and form part of the A
Munkhab to be issued in this case. The rest of the property shall
be considered as madud Maush and governed by and the parties
shall be entitled to (legal) shares therein according to Siham-e-
Sharai. The claimants Syed Shaha Safirulla Hussaini as Sajjada
and the performer of the service to the Dargah Sahrif shall
B
be entitled to 2/3 rd according to Sula-o-Sulsan Rule in the
Mashrut-ul-Khidmat jagirs and his sharia share in the other
Maqtaas and Inam lands, subject to the Abolition of jagirs
and commutation Regulation 1358 F and the Abolition of
Inams Act 1954.
(Emphasis supplied) C
xxx xxx xxx”
32. The above order had a reference to an order passed by the
Chief Minister, notified on 29.5.1956. The said order reads thus: -
“No. 545 Dated: 29.5.56 D
BY ORDER OF CHIEF MINISTER
The estate of late Syed Akbar Husaini was taken under
supervision of Sarf Khas Court of Wards in 1349F. The sources
of this estate were as follows:- E
1. Manikonda village | situated in Hyd.
2. Darghah Sharif village | west Taluk
3. Inam lands at Shaikhpetand at Mohd. nagar fort. F
4. Patta lands at illegible village of Bidar Taluk.
5. Patta lands at illegible village of Kalabgore Taluk.
6. Makta illegible (Raidrug village) Hyd. West Taluk.
G
The village No.1 and 2 have been handed over to the
Government due to the abolition of Jagirs. As commutation of the
said Jagirs, Jagir Administration’s Office was sending amounts to
the extent of the share of the dependents of the estate to this
office and the rest to the Muslim Waqf Board, towards the service
expenses of Darghah known as Hussain shahWali. H
1272 SUPREME COURT REPORTS [2022] 19 S.C.R.
A There are several dependents in this estate. Inam and
succession Enquiry is pending in the Atiyat Court. The heirs of
the deceased Sajjada Syed Akbar Hussaini are as follows:
1. Syed Safiullah Hussaini son.
2. Syed Nademullah Hussaini, son.
B
3. Fatifunnia Begum mother of No.2.
4. Fatima Bi mother of No.1.
5. Mahoob Sahed Bi daughter of No.2
No.2 and 3 have migrated to Pakistan. Apart from the above
C
persons, the other dependents were paid their Guzarafrom the
income of the estate.
The properties were meant for the service of the Darghah
Hussain Shal Wali and the maintenance of the late Sajjad’s family
and the other dependents. The affairs of the Darghah are being
D
managed by Muslim Waqf Board. Until the Inam and succession
Enquiry case is decided finally by the Atiyat Court, it cannot be
said whether the Inam lands also come under the purview of
service Inam or not.
The patta lands can be deemed as personal properties of
E the late Sajjada, which can devolve on his sons and widows. Syed
Safiullah Hussaini has passed the age of majority and he is now
23 years old. He can manage the personal properties and own
approach the Atiyat Court to get the Inam and succession case
decided.
F In view of the above reasons, the estate and person of the
Ward No. 1 and released from the Court of Wards supervision.
Patta lands are released in favour of Syed Safiullah Hussaini and
the maintenance of his mother, niece and others will be a charge
on him.
G The cash balances of the estate will be kept in deposit with
this office pending final decision of the Atiyat in the inams and
succession case and pending final settlement of accounts.
As such the estate is released from the Court of Wards
supervision on the lines mentioned above, from the date of issue
H of this notification.”
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1273
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
33. This order of Nazim Atiyatwas given effect to when a A
Muntakhab27 was issued as a result of succession Inquiry held under the
Atiyat Enquiries Act. The maash in respect of villages Manikonda and
Guntapalli was characterized asa conditional grant to Dargah whereas
Mukhta land situated in village Raidurg and inam land situated in Shaikpet
was described as Madad Mash28. The final order mentioned in Column
B
8 reads thus:
“In view of the proof, documents of grant, reports & oral evidence
produced by the claimants & in view of the entries of the office
of Central Records, Mash (Grant) under this claim as mentioned
in Column No.6 of this Muntakhab, the villages of Jagir Manikonda
& Guntapalli are hereby declared as crown grant, with all items C
of income including excise, as conditional service grant of Dargah
Hazrath Hussain Shah Vali Rh., & restored with the practice of
Suls-e-sulsaan (1/3rd 1/3rd 1/3rd) out of which Syed Safiullah
Hussaini as Sajjada service render of the Dargah shall get 2/3rd&
in the balance 1/3rd the persons of Bradri (family) mentioined in D
Column 4 of this Muntakhab shall get their shares are per Shariat.
And the lands of Maqta & Inam situated at Shaikpet & Taluqa
Mohammed Nagar & Raidurg (properly known as Dargah
Shareef) are proved to be self acquired & in view of long
possession & enjoyment are hereby restored as Madad Mash
according to their Sharai shares in favour of the persons mentioned E
in Column No.4 of this Muntakhab.
Conditional service grant shall be governed under the orders of
inclusion of Jagirs & Madad Mash shall be governed under the
orders of abolition of Inams. Therefore steps shall be taken for
immediate execution. F
Sd/- 25-11-1358F”
34. The Nazim Atiyatd is missed the review by an order dated
24.09.1958. An appeal was thereafter filed before the Board of Revenue
against the said order in review, which was dismissed on 14.11.1958 as
not maintainable. Some of the persons aggrieved against the order passed G
in review filed a Writ Petition No. 666 of 1959 under Article 226 of the
Constitution before the High Court of Judicature at Hyderabad. It was
thereafter that the High Court returned the following finding:
27
Document in the nature of decree
28
Grant in Aid H
1274 SUPREME COURT REPORTS [2022] 19 S.C.R.
A “As regards the character of the lands, so far as the jagir villages
of Guntapalli and Manikonda are concerned, I have no doubt in
my mind that they were rightly held to be villages granted as
conditional grants in favour of the Dargah and I am unable to
discover any error in respect of that finding. Regard to other
properties in Raidurg, Shaikpet and Qull Mohammad Nagar also
B
the Nazim Atiyat has held that they are zarkhareedmaktha lands
constituting madad mash.”
ii) Facts leading to the impugned Notification
35. A Survey Commissioner was appointed to conductan inquiry
C in respect of wakfs in the State of Hyderabad in terms of Section 4 of
the 1954 Act sometime in the year 1961. Such Survey Commissioner
submitted his reports bearing serial number 259-263 on or about
17.12.1970 / 28.1.1971. The report at serial number 262 had a following
note in the remark’s column, which reads thus:
D “The Dargah is looked after by the Mutawalli. In the past the
Jagirs of Manikonda, Dargah Hussain Shah Wali and Gunthapalli
were given for the functioning of the Dargah and annual Urs.
The particulars of the compensation received used by the
Mutawalli are not known. Sd/- R.I. Narsinghi.”
E 36. On the basis of such survey reports, a notification was published
on 9.2.1989 in the Andhra Pradesh Gazette declaring 5506 sq. yards i.e.,
3165 sq. yards pertaining to Dargah Hazrath Hussain Shah Wali; 1222
sq. yards pertaining to Khanqah with Mosque and well area and house
on the north side of Khanqah area admeasuring 1069 sq. yards as wakf
land. The notification mentioned Syed Safiullah Hussain as the Mutawalli
F of the Wakf. The property in question appears at Sl. Nos. 3057, 3058
and 3059. The description of the properties notified as wakf in such
notification reads thus:
G
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1275
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
37. A perusal of the documents filed by the Wakf Board before A
this Court shows that it was on 30.1.2005 that Syed Safiullah Hussaini,
the Mutawalli, wrote a communication to the Chief Executive Officer of
the Wakf Board to constitute a Managing Committee to protect the Wakf
property and the service Inam land to an extent of 1654 acres situated in
Manikonda Jagir Village as it had not been notified in the Andhra Pradesh
B
Gazette. The relevant extract from the letter reads thus:
“I, hereby submit the following few lines for kind consideration
and favourable immediate action.
I, submit that there is a Darga known as ‘Darga Hazrat Hussain-
Shah Vali’ situated at Hussain Shah Vali Village, Rajendernagar C
Mandal consisting of Darga, Khankha, Mosque, House notified in
A.P. Gazette No. 6-A, dt. 9th February 1989 at Sl. No. 3055, 3057,
3058 & 3059 under the towalliath of the Petitioner herein.
I am performing the duties of Mutawalli by conducting Annual
Ceremony without any complaint from the public and devotees. D
There is a Muntakhab issued from the Nazime-Atiyat of A.P. in
file No. 2/56 Atiyat in the year 1344 Fasli from which it is evident
that there is service Inam lands to an extent of 1654 Acres situated
in Manikonda Jagir Village, but it has not been notified in A.P.
Gazette. There are several share holders to be benefitted from E
the income of Darga and its attached properties under the rule of
Sulse Sulsan as mentioned in the Muntakhab. I further submit
that I am in old age having above 80 years and found it difficult to
protect the service inam lands now a days due to interference
from various corners and without getting any source of income
from the said property. As such I am only depend upon the income F
source of Darga alone which itself found to be very meagre for
livelihood and maintenance of the institution.”
38. A notification was issued by the Minority Welfare Department,
Government of Andhra Pradesh, prior to the aforesaid communication,
constituting Second Survey Commissioner on 3.3.2001 inter alia on the G
ground that the first survey was conducted about 40 years back. Such
notification was issued in exercise of powers conferred under Section
4(6) of the 1995 Act. Though the survey was not complete, the Wakf
Board sought a copy of the report of the second survey vide
communication dated 2.9.2005 inter alia on the ground that an area of
H
1276 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 1654 acres and 32 guntas was held to be a service Inam land in the village
Manikonda. Reference was made to the order of Nazim-Atiyat of
31.5.1957 that village Manikonda and Guntupalli with all items of revenue
inclusive of excise were conditional grants for service to the Dargah.
39. Such documents filed by the Wakf Board before this Court
B shows that firstly the Chief Executive Officer of the Wakf Board sought
supply of village map of Manikonda Village. It was on 25.3.2005 that
Pahani for the year 1950-51 was sought. The Chief Executive Officer
of the Board had subsequently written a letter on 2.9.2005 to the second
survey commissioner to seek a copy of the Survey Report. The said
letter reads thus: -
C
“This is to state that the Darga Hazrath Hussain Shah Vali situated
in Hussain Shah Vali (V) of Rajendranagar (M) is notified wakf
in A.P. Gazette No. 6-A dated 09.02.1989 at Sl. No. 3055, 3057,
3058 and 3059.
According to the information furnished by the petitioner/muthawalli
D
the said subject institution has service inam land in Manikonda
(V) convering an area of 1654-24 guntas, as per Sanad of 1249.
As per the judgment of Nazime-Atiyat dated 31.05.1957 in F. No.
2/56 Inam, Medak of 1344 Fasli, the Village Manikonda and
Guntupalli with all items of Revenue inclusive of Excise and
E conditional on service to Darga declared.
Please furnish the copy of Second Survey Report of the said subject
institution together with details of the service inam land attached
to the said subject institution early for further follow up action by
the Board.
F Yours faithfully,
Sd/- xxxxxx
Chief Executive Officer”
40. The second survey report was accordingly sent to the Wakf
Boardon 30.9.2005. The office noting which led to the issuance of Errata
G
notification, as per the record produced, reads thus: -
“Submitted:-
In this case the Surveyor of Wakf Board collected the copies
of Old pahani for the year 1951 and Khasrapahani for the Year
H 1954-55 in respect of the land relating to D. Hzt. Hussain Shah
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1277
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
Vali situated in Manikonda(V) and submitted his report along with A
copies of said revenue record. It is evident from the entries of
revenue record all the Survey numbers shown as Government
land Porombok. A detailed letter were already sent the
Government on 23-5-05 marking copy to the Collector, R.R.
District for necessary action. There is no response from the
B
Government as well as Collector R.R. District in this respect.
It is brought to the notice of this office that Sy.
Commissioner of wakf have covered the said subject institution
during second survey. As such the Sy. Commissioner of wakf
may be addressed to send a copy of Sy. Commissioner’s report
of Second survey for taking further action. If pleased draft placed C
below may be approved.
After verification of Sy. Nos. & area from the existing
record available in the files in respect of Manikonda Jagir (v)
further action can be taken in the matter.
D
Further the particulars of Service Inamlands situated at
Guntapalli of Sanga Reddy (m) in Medak Dist. Quila Mohd. Nagar
(v) in Golkonda (m) as well as Hussainsha(v) may be obtained
immediately from the concerned Mandal for taking further action.
Sd/- Sd/- E
EO 10.10.05 CEO 12.10
xx xx xx
Submitted – It is submitted that the Sy. Commissioner of Wakf,
AP, Hyd. submitted his 2nd survey report in respect to the subject
F
institution and its attached landed properties.
But present Gazette publication – not shown the Sy. Nos. and its
attached properties of the subject institution.
In view of the above a Gazette publication may be published in
the Gazette by sending an errata to the Govt. printing press, Hyd. G
Submitted for orders. Sd/-
EO. 7.11.05
In the earlier publications, the S.Nos. and area attached to the
Institution have not been notified in the Gazette. As per 2 nd survey
H
1278 SUPREME COURT REPORTS [2022] 19 S.C.R.
A report, an addendum may be issued for publication in the Gazette
to the extent of Manikonda Village lands, if pleased.
Pl Put up draft
Sd/-
B E.O. CEO 9.11
7.11.05
3) The Addendum Notification as approved by the S.O., on 8-12-
05 may be sent to the Commissioner of Printing Press for
publication in the Gazette.
C
For Orders.
Sd/-
C E O 10.12
xx xx xx
D According to the ‘Satwar’, the total area of each and every Sy.
No. comes an extent of AC 1766-04 gts.
The statement is placed below for kind perusal and further orders
as deem fit and proper please.
E 4.1.06 Supdt. E.O.
5.1.05
ANDHRA PRADESH STATE WAKF BOARD
F.NO. M1/69/PROT/RR/04 Dated 13.3.06
F
G
Sir,
Sub: Wakfs-RR Dist.-Rajendranagar (m) Manikonda (v) Dargah
Hazrat Hussain Shah Vali-Eraata to the earlier Gazette
Notification-Published-Req-Reg.
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1279
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
Ref.: Gazette Notification No 6-A, Dated 9-2-1989 at page no A
262 Under Sl No 3057, 3058 and 3059.
I am sending herewith an addendum notification to the earlier
Gazette notification No. 6-A, Dated 9-2-1989 at page no 262 under
SL no 3057, 3058 and 3059 of the subject institution.
This may kindly be published in the next issue under intimation B
to this Office.
Kindly intimate the publication charges immediately for
payment.
Encls:- Errata to notification. C
Yours faithfully,
CHIEF EXECUTIVE OFFICER
13.3.”
41. It was thereafter thatthe impugned Errata notification was D
published which has been reproduced in the opening part of this judgment.
42. The records,from the Criminal Court wherein trial of offences
under Sections 468, 471, 420, 474, 475, 467 IPC, were requisitioned to
examine the original second survey report. A perusal of the said survey
report shows that white fluid has been applied over the word ‘Nil’ in an E
answer to Col. No. 11 and also over 3-4 lines at page 4 of the report
under the heading “remarks” written with hand. The reference to “for
remaining Inam lands, pl. see remarks” at page 2 is above the column
“Gross Income of the property as Rs. 4104.16 ps from Jagir”. The
response to words “remarks”which is mentioned at page 4 states that,
“as per letter of Syed Saifullaah Hussani (illegible) dt. 4.2.02, the entire F
village of Manikonda Jagir is Inam Mashtrul Qidmat attached to Dargah
Hussain Shah Vali”.The words at page 2 “Inam lands situated at village
Guntupalli, Qila Mohd. Nagar, Golconda and agriculture lands at Dargah
Hussain Shah Vali Village” are in different handwriting than the entries
made against column numbers 1-10. The handwriting in response to G
Col. No. 11 on page 1 and page 2 is also different. The second part of
remarks at page 4, after the use of white fluid, is that an area of 932 sq.
yards is in illegal occupation of five personsis in the same handwriting
as response to Column No. 1 to 10.
H
1280 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 43. The overwriting and additions show that total extent of 1654
acres and 32 guntasis in different handwriting and has been added
subsequently after applying white fluid. However, since the trial is pending
for the offences under Sections 468, 471, 420, 474, 475, 467 IPC in
respect of determining who had made such alterations, nothing more is
B required to be said in the present proceedings.
iii) Facts Leading to the Writ Petitions before the High
Court
44. The Errata notification dated 6.4.2006 was challenged by the
State along with the Corporation whereas other writ petitions were also
C
filed disputing the said notification. In the said writ petition, it was, inter
alia, pleaded that Manikonda is a jagir village and that pursuant to the
Abolition Regulations, the said village vested in the State Government
under Section 6 of the said Regulation. As per Government Order No.1
dated 03.10.1949, all jagir villages have been taken over by the Diwani
D (Government) by the end of September, 1949. Thus, there was no wakf
property before the enactment of 1954 Act. It was also pleaded that all
revenue records from times immemorial show that the land of Manikonda
Village has been a government land. The Errata notification published
on 6.4.2006 has created a cloud on the right, title and interest of the
E State overthe lands at Manikonda village. It was pointed out that the
notification has been issued without following the mandatory provisions
of the Act. It was further contended that the second survey report was
tampered as was clear from the over-writing/corrections to the naked
eye andeven the signatures of Mandal Revenue Officer, Serilingampally
and Mandal Revenue Inspector were forged as per their statements. It
F was pointed out that the survey report has not been submitted to the
State Government and the term of the Survey Commissioner was being
extended from time to time. Referring to the order passed by Nazim
Atiyat, it has been asserted that Manikonda was a jagir village which
was originally granted to one Safirullah Hussaini. He had mortgaged the
G land to Hussain Bin Muqaddam Jung on 1st Rajab 1295 H (20.6.1879).
After the death of both of them, mortgagor and the mortgagee, Akbar
Hussain, son of Safirullah Hussaini applied to the Sovereign for re-grant
which was allowed on 1st Ramzan 1333 A.H. (13.07.1915). The said
grant, produced by learned counsel for the Dargah reads thus:
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1281
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
“Farman of Nizam A
After looking into the application of Finance department dated
29th Shaban 1333 A.H. in which it is submitted that the properties
(Jagirs) of Dargah Shareef of Hazrath Hussain Shah Wali, which
are mortgaged with the factory of Hasan Bin Mohsin (under the
supervision of the Government) may be released as per the request B
of the Sajjada of the Dargah.
Order (Farman)
According to the opinion of Finance Minister and Director General
of Revenue Department if the Sajjada repays the amount he owes
to the factory of Hasan Bin Mohsin the properties belonging to C
Dargah Shareef may be released under the following conditions.
1) The Sajjada of the Dargah shall regularly the amount of
share to the other shareholders who have the right to receive
maintenance allowance required for their upkeep and
sustenance. If the amounts are not paid, the revenue D
department shall decide about it.
2) If the Inam Inquiries or inheritance inquiries are required, it
shall be done as per the rules and regulations.
Sd/-
E
Wednesday
1st Ramzan 1333 A.H.”
45. Akbar Hussain died on 1st Bahman 1343 Fasli (4.12.1934).
His two sons, Syed Nadeemullah and Safirullah Hussaini were minors.
Therefore, the management of the estate was taken under the supervision F
of the Court of Wards in 1349 Fasli (1940). Syed Nadeemullah then
migrated to Pakistan. An order was issued in favour of the legal heirs of
Safirullah Hussaini by the Nazim Atiyat after detailed inquiry as
mentioned above.
46. Since the jagir of Manikonda village stood abolished, the G
commutation amount under the Commutation Regulation was paid to
the legal heirs vide Muntakha border No.98 of 1958. The order of the
Nazim Atiyat itself clarifies that Manikonda jagir and Guntapalli jagir
were subject to Jagir Abolition and other properties were subject to Inam
Abolition. It was pointed out that grant of jagir as Mashrut-ul-Khidmat H
1282 SUPREME COURT REPORTS [2022] 19 S.C.R.
A was specifically excluded from the purview of the Endowment
Regulations. The Sovereign continued to possess the land as title holder
but only the usufruct couldbe used by Muttawali. It was pleaded that
grant of such jagir stood abolished under Section 16 of the Abolition
Regulation which came into force on 15.8.1949, therefore, Mashrut-ul-
Khidmatas part of wakf in 1954 Act or 1995 Act would not apply to the
B
lands in question.
47. It was also pleaded that the order of Nazim Atiyat was passed
under the provisions of Atiyat Enquiries Act which specifically provided
for and dealt only with the claims of succession relating to the commutation
sums in respect of abolished jagirs/Inams. Thus, the property did not
C retain any of the characteristics of Mashrut-ul-Khidmat post the abolition
of jagirs and that Nazim Atiyat had no jurisdiction to decide the title to
this land.
48. In a counter affidavit filed on behalf of the Wakf Board, it has
been averred that the Errata notification is in respect of property attached
D to the wakf institution or Dargah which was granted by the Sovereign
and confirmed by the Chief Minister relying upon an order passed by
Nazim Atiyat Court. Reference has been made to the report of the First
Survey Commissioner that Manikonda and Guntapalli jagir villages were
allotted to Dargah for rendering services to the institution. Thus, Errata
E notification is not a new notification as the requisite details would have
to be provided in the original notification itself. It was pointed out that
Manikonda was granted to Hazrath Shaik Bade Saheb and was in the
list of exempted grants. Therefore, Section 6 of the Abolition Regulation
has no application to Manikonda village. The order of the Chief Minister
dated 29.5.1956 was referred to contend that the villages of Manikonda
F and Dargah Sharif have been handed over to the custody of the
Government due to abolition of jagirs. The commutation amount sent by
the Jagir Administration to the descendants of the holder of the estate
and rent to Muslim Wakf Board was towards service expenses of the
Dargah. The properties were meant for the service of the Dargah only.
G The affairs of the Dargah are being managed by the Muslim Wakf Board.
In respect of submission of the Survey Commissioner Report to the
Government, it was averred that the Government acts as a mere
ministerial conveyor of the report.
49. It was further contended that the information furnished by the
H Survey Commissioner was not treated as a survey report, it was merely
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1283
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
an information provided by the Survey Commissioner. The Board has A
the requisite powers to secure information and take steps on such
information received. It was asserted as under:
“A valid title, legally sustainable stand, and true details, cannot be
ignored on the ground of procedure not being followed especially
when that procedural step complained about is merely that the B
report reached the Board at its instance directly and not through
the government.”
50. The order of the Sovereign dated 1st Ramzan 1333 A.H.
(13.07.1915) was said to be misconceived as grant was given to Akbar
Hussain subject to his doing service to the Dargah. Thus, a grant in the C
name of an individual doing service or rendering service to any Wakf
institution cannot be treated as a grant in the name of any individual but
it is the property of the Dargah and falls within the definition of Wakf.
The Endowment Regulations excludes Mashrut-ul-Khidmat as
endowment or Wakf. The specific averment in the counter reads thus:-
D
“In reply to the averments that the order of Nazim Atiyat dated
31.5.57 shows that the said lands were never granted to the Dargah
but only granted by the HEH. The Nizam to Akbar Hussain S/o
Safiullah Hussaini on 1st Ramzan 1333 Fasli subject to his doing
service to the second respondent Dargah is misconceived, because
it has been held by the Hon’ble High Court as well as by the E
Hon’ble Supreme Court of India that “A grant in the name of an
individual doing service or rendering service to any wakf institution
cannot be treated as a grant in the name of an individual but it is
the property of the Dargah and it falls within the definition of
Wakf. It is absolutely incorrect to interpret that the grant of Jagir F
as Mashrutul Khidmat was not treated as endowment or wakf is
also clear from the exclusion of such grant i.e. Mashrutul Khidmat
from the purview of the Hyderabad Religious Endowment
Regulations of 1349 Fasli. It is absolutely incorrect to say that the
Ruler Nizam continued to possess the land as title holder only
usufruct to the Mutawalli.” G
51. It was also averred that the concept of Mashrut-ul-Khidmathas
been in existence even before the 1954 Act as such grant is recognized
by Muslim law as pious, religious and charitable. It thus acquired the
character of wakf even before the codification of wakf law.
H
1284 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 52. It was submitted that by the Abolition Regulation, jagirs were
not abolished but only jagirdars were. The revenue collecting roles of
jagirdars was taken over by the Jagir Administrators. When Jagir has
been granted as Mashrut-ul-Khidmatin respect of a wakf institution, it is
a permanent dedication and the grantor ceases to have any title or
ownership of the said property. The object of grantee to offer Oodh-O-
B
Gul is offering Fateha, a religious observance. It was denied that the
property did not retain any of the characteristics of Mashrut-ul-Khidmat
post the abolition of Jagir.
53. As per the list of dates and factual background along with
written submissions on behalf of Telangana Wakf Board submitted to
C this Court, it has been submitted that as per the official revenue record
of the year 1913, the land of Manikonda is shown to be as Government
land. It has also come on record that the land in Manikonda village was
transferred to the Corporation. It is the stand of the Wakf Board that no
objections were filed against the Government memo as the land was
D wrongly described as Government land.The Corporation issued an
advertisement on 22.9.2004 inviting bids of private developers for
development of IT Parks and in response, certain private parties submitted
their bids. But before issuing allotment letters, a public notice was issued
by the State Government on 27.7.2005 inviting objections to the allotments
proposed to be made. However, no objections were filed by any person
E including the Wakf Board. It was thereafter that the land was allotted on
17.8.2005 to the various private allottees. It is the stand of some of the
appellants such as Emaar Hills Township P. Ltd. that the land was allotted
to the said appellant in the year 1999 and the construction was raised
thereafter.
F 54. In the counter affidavit filed by the Wakf Board in Writ
Petition No. 4515 of 2008, it was submitted that the royal grant as
disclosed from the Muntakhab was granted for rendering service to
Dargah even though name of the grantee was mentioned therein. When
the grant has beenfor rendering service, even after the death of grantee,
G the property would never revert back to ruler but shall continue to be
in the name of Dargah.
55. The High Court vide common order decided three writ petitions
filed in public interest to challenge the alienations made by the State or
the Corporation. Writ Petition Nos. 6148 of 2008 and 28112 of 2007
H were filed on behalf of alleged pattedars whereas Writ Petition No.
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1285
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
4515 of 2008 was filed by an allotee of land from the Corporation. The A
High Court examined the three following questions:
“I. What is the effect of Hyderabad (Abolition of Jagirs),
Regulations, 1358F and the Hyderabad Jagir (Commutation)
Regulations, 1359F and whether the lands vested in the State
Government after abolition, of Jagirs? B
II. Whether the errata notification dated 06.04.2006 is, ultra vires
the provisions of the Wakf Act, 1995?
III. Whether the writ petitions challenging the errata notifications,
are maintainable and whether they are barred in view of the
effective, and efficacious alternative remedy available under the C
Wakf Act, 1995?”
56. The High Court, inter alia, held that a wakf is presumed by
user and whatever properties are treated as wakf cannot be reversed
because it always remains a wakf. The High Court culled down the
following principles in respect of wakf property: D
“32. At this stage, instead multiplying the authorities, we may
reiterate, the well known principles in this regard.
(1) Mohamedan Law of wakf owes its origin to a rule laid,
down by the Prophet and means “tying up of property in
E
the ownership, of God and Almighty and the devotion of
the profits for the benefit, of human beings”.
(2) When a founder dedicates the property for a wakf, the,
ownership of the founder is completely extinguished.
(3) When once it is declared that a particular property, is wakf F
or any such expression is used implying wakf or the
document, shows that there is dedication for a pious or
charitable or religious, purpose, the right of the person is
extinguished and the ownership, is transferred to the
Almighty. The manager of wakf is mutawalli. Though
mutawalli is the administrator, governor, superintendent or, G
curator of the wakf property, he has no right in the property
belonging, to the wakf.
(4) The dedication need not specifically be in favour of, a place
of worship, khankah, Dargah, cemetery etc. It is enough if,
H
1286 SUPREME COURT REPORTS [2022] 19 S.C.R.
A the dedication is made for the purpose recognized by Muslim
law as, pious, charitable or religious.
(5) Service inam granted to individuals burdened with service,
for the purposes which are pious, religious or charitable,
answers, description of all the ingredients of wakf.
B (6) Even if the grant of the land is for rendering service, to
wakf, the construction of mosque or khankah on the land
itself, is sufficient proof of dedication to wakf.
(7) When once the property is held to be wakf, it always, retains
its character as a wakf and the grant of patta to service,
C inamdars and persons in possession, does not in any manner
change, its character.
(8) In a case where the inam is service inam for rendering,
service in connection with a pious, religious and charitable
purpose, the holder of the inam burdened with service does
D not acquire title, to that property. If the land is resumed
from such inamdar for non-performance, of service and
re-granted to another person in only means that the, wakf
is entrusted to another individual to perform service.”
57. In respect of post abolition situation, the Court held as under:
E
“35. There are special provisions in the Abolition Regulation, Rules
made thereunder and Jagir Commutation Regulations concerning
the grants made to support religious and charitable institutions. As
per the proviso (b) to Section 16 of the Jagir Regulations, the
distribution of the net income shall be effected as far as possible
F as per the wishes of the grantor and to be in consonance with the
custom and usage. Rule 6 made under said Regulations contains
the method of distribution of net income as contemplated under
the proviso (b) to Section 16. The principle adumbrated therein is
suls-e-sulsan. According to this, one half of the income shall be
spent for fulfillment of the object and the remaining half would be
G
distributed equally between the jagirdar, mutawalli or other persons
entitled to perform the duties and hissedars (legal heirs of the
inamdar). This is further clarified by Regulation 10(2) of the
Commutation Regulations, which obliges the Government to pay
90 per cent. of the gross basic sum of commutation to the institution
H every year commencing from 1st April, 1950 for the service of
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1287
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
the institutioa Prima facie, none of these provisions help the A
Advocate General in sustaining the argument that on payment of
commutation, Mashrut-ul-khidmat stands reversed and vests in
the sovereign/Government. That being the case, the presumption
that the title to the tract of land in the territory always vests in the
sovereign in the absence of any claim by others (reiterated in R.
B
Hanumaiah v. State of Karnataka, (2010) 5 SCC 203) is not
attracted.”
58. Still further, the High Court relying upon the Muntakhab issued
by Government of Nizam in 1249 Fasli, the notification from Nazim
Court of Wards dated 29.3.1956, the order dated 31.5.1957 of the Nazim
Atiyat and consequential Muntakhab dated 26.11.1958, the provisional C
commutation award dated 30.09.1952 and the order of the High Court
dated 14.12.1961, held as under:
“36. ..….The State would like this Court to draw an inference
from these documents mat the grant being Mashrut-ut-khidmat
and there being no proven dedication, the land vested in the D
Government after abolition of jagirs. The Wakf Board of Dargah
also rely on these documents as well as three comparatively recent
documents, which are the Government Memoranda/
correspondence between the Secretaries to the Government i.e.,
Memo dated 25.1.2007, and two letters dated 4.5.2007 and E
12.6.2007 to press the submission that from the date of grant, the
Manikonda land was Wakf and even after abolition of jagirs and
in spite of the payment of commutation amount to legal heirs and
hissedars, it retained the character of being the Wakf. In our
considered opinion, all these documents need to be clarified and
explained by whoever party relying on them. Unless a deeper F
probe in relation to the contemporaneous circumstances and the
contextual events of the period when the ancient documents came
into existence (may be by oral evidence or by other documents),
it is not possible at all to countenance submission of the Advocate
General that the subject land is not Wakf and it was taken over by G
the Government on abolition of jagirs.”
59. The High Court found it to be very doubtful while referring to
the Abolition Regulation as to whether the Government can claim any
vested right in such Inam. The High Court was not inclined to go deeper
into these issues. The following reasons were recorded: H
1288 SUPREME COURT REPORTS [2022] 19 S.C.R.
A “38. Thus, the Jagir Regulations, Commutation Regulations and
Inams Abolition Act treated all the jagirs and inams held for the
purpose of support of charitable and religious purposes including
the Wakfs differently. Those inams, in law, if proved are to be
held as endowments to the charitable and religious institutions like
temple or Wakf, and it is very doubtful whether the Government
B
can claim any vested right in such inams. We are not inclined to
go deeper into these issues for the reasons infra. We have only
considered the submissions with reference to the plain meaning
of the provisions to which our attention has been invited. Further,
there are also seriously contested questions as to the nature of
C the Nizam grant to the Dargah and the right claimed by the legal
heirs of the gantee. Both the parties have various documents in
their armoury, some of which are produced before this Court. All
of them call for interpretation and inference subject to further
clarifications.”
D 60. In respect of the Errata notification, the High Court found that
Sections 4 and 5 of the 1995 Act form one group, Sections 6, 7 and 83
are adjudicatory provisions applicable in the event of a dispute regarding
wakfs whereas Sections 40 and 41 read with clause 32(2) of the 1995
Act form another group of provisions. The High Court found as under:
E “44. An analysis of the above provision would show that the Wakf
Board can itself collect information regarding any Wakf property
which it has reason to believe to be Wakf property. This power of
the Wakf Board to collect information on its own is not subordinate
to the power of the State Government under Section 4(1) to appoint
Survey Commissioners. Sections 4 to 8 appear in Chapter II, which
F deals with survey of Wakfs and Section 4 only speaks of
“Preliminary Survey of Wakfs”. Chapter V (Sections 36 to 43)
deals with the registration of Wakfs. The law requires that every
Wakf whether created before or after commencement of the
Wakf Act, shall be registered at the office of the Wakf Board.
G Even if a Wakf is not surveyed or mentioned in the report submitted
by the Survey Commissioner under Section 4(3), even then there
is an obligation for registration of every Wakf, and as per Section
43, all the Wakfs registered prior to the Wakf Act shall be deemed
to have been registered thereunder. In this context, Section 40
assumes significance. Sub-section (3) thereof contains a non-
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1289
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
abstante clause. This overrides other provisions in the Wakf Act A
Notwithstanding anything contained in the other provisions of the
Wakf Act, under Section 40(3) the Wakf Board may hold an
Enquiry and if it is satisfied that a property is a Wakf property,
can issue notice to the Trust or Society and then register under
Section 36.”
B
61. The High Court found that a reading of Sections 6, 7 and 83 of
1995 Act leaves no doubt that the question whether a particular property
specified as wakf property in the list of wakfs is a wakf property or not
has to be adjudicated by the Wakf Tribunal in a suit instituted for the
said purpose. It was also held that Section 40 is wide enough to confer
powers on the Wakf Board to issue the Errata notification and it is neither C
necessary for the Government to appoint a Second Survey Commissioner
nor for him to submit a report.
62. In respect of the third issue as to whether the writ petitions
are barred, the High Court held that the Act requires all disputes, questions
or any work or other matters whatsoever and in whatever manner which D
arise relating to a Wakf or Wakf property, are to be adjudicated only by
the Wakf Tribunal. After considering various judgments, the High Court
held as under:
“73. In view of the binding precedents of the Supreme Court
directly on the point as to the bar of writ petitions in relation to E
dispute, question or any matter relating to Wakf in view of Sections
6, 7, 83 and 85 and also the power of the Wakf Board to cause
registration of Wakf or to amend registration of the Wakfs under
Section 41, we have no hesitation to hold that this Court cannot
entertain writ petitions filed by the State and others to whom either F
the Government or the APIIC allotted portions of Manikonda lands.
To avoid adding to the length of this judgment, it not necessary to
refer to various other judgments referred to by the Counsel for
the Wakf Board on the question of maintainability of writ petition.
We are also not impressed with the submission of the Advocate
General that the issue raised in these writ petitions does not involve G
any disputed question of fact or the issue raised in these writ
petitions is beyond the purview of jurisdiction of Wakf Tribunal.”
63. The aforementioned findings recorded by the High Court are
subject matter of challenge in the present appeals.
H
1290 SUPREME COURT REPORTS [2022] 19 S.C.R.
A G. Arguments of the Appellants
64. Mr. V. Giri, learned Senior Counsel appearing for the State,
inter alia, raised various arguments to challenge the order of the High
Court. It was contended that no dispute was ever raised regarding alleged
exclusion of properties belonging to Dargah in the first notification even
B though the first survey report was sent to Wakf Board. It was at the
instance of the Wakf Board, the errata notification was published after a
long delay of 17 years. The impugned Errata notification has been issued
without following any procedure as prescribed under the Act on the
ground that certain lands were not notified in the notification dated
09.02.1989. Even if the notification excluded certain land claimed to be
C as wakf land, the Wakf Board could exercise suo motu powers under
Section 40 of the 1995 Act. Such inquiry was required to be conducted
after compliance with the principles of natural justice, i.e., after granting
an opportunity to the affected parties. Since the land was shown as land
of the State since 1912-13, the State was the affected party who was
D entitled to be heard before declaring the land in question to be a wakf
property. Still further, no objections were filed against the notice issued
by the State on 27.07.2005 within 15 days against the proposed allotment
of Government land to the Corporation. Since no objections were received,
the Corporation further allotted the land to various private groups.
Therefore, the actions of the Wakf Board in suddenly claiming rights
E over the property spread over alarge area of land are not bona-fide.
Reference was made to a judgment of this Court reported as M.P. Wakf
Board v. Subhan Shah (Dead) By Lrs. and Others29.
65. It was further averred that the survey report by Second Survey
Commissioner constituted vide notification dated 03.03.2001 was never
F submitted to the State Government as required under Section 5(1) of the
1995 Act. Since the procedure mandated by statute has not been complied
with, the Wakf Board could not cause the notification to be published on
the basis of report which was never submitted to the State Government.
The said survey report had material alterations visible to the naked eye.
G The report though is subject matter of a trial to determine who has caused
the alterations, but such report on the face of it could not be form basis
of the notification. The stand of the Wakf Board that the Errata
notification is not based upon second survey report is not tenable as the
proceedings produced by the Wakf Board show that such report as well
H 29
(2006) 10 SCC 696
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1291
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
as the order of the Nazim Atiyat were the two factors considered which A
led to impugned notification.
66. It was argued that Manikonda village was a jagir village. The
jagirs were granted by the Sovereign for the lifetime of grantee and
were not heritable or alienable. After the death of jagirdar, it was the
discretion of the Sovereign to re-grant it. Reference has been made to a B
judgment reported as Ahmad-Un-Nissa Begum and Another v. The
State through the Chief Minister and Others30.
67. The Abolition Regulation abolished the jagirdars and vested
the jagir land with the State in terms of Regulation 4 of the Abolition
Regulation. The jagirdars were to only get commutation value in lieu of C
the cash payments after the abolition of the jagirs. Regulation 16 abolishes
the jagirs granted to a temple, mosque or any institution established for a
religious or public purpose. It was argued that if the jagir granted to
mosque stands abolished, the land which is a conditional grant for the
service of the religious institution shall also stand abolished as a necessary
D
consequence of abolition of jagirs. The order of the Chief Minister dated
29.05.1956 also shows that the Manikonda village has been handed over
to the Government due to abolition of jagirs.
68. A perusal of the order of Nazim Atiyat court shows that the
grantee is holding conditional grant for the service of the Dargah, and
that such grant is subject to the Abolition Regulation and Inams Abolition E
Act. Therefore, even if the land of the Manikonda village was given as
a conditional grant, the same stood abolished by virtue of the Abolition
Regulation. The Muntakhab shows that Syed Safiullah Hussaini was
given 2/3rd of the conditional grant in view of the practice of Suls-e-
sulsaan that is 1/3rd each whereas 1/3rd was to be given to the other F
family members. Such grant stood abolished with the enactment of the
Commutation Regulation consequent to the Abolition Regulation. In terms
of the order of Nazim Atiyat, the heirs of Syed Safiullah Hussaini were
paid commutation amount vide award dated 05.06.1959. Reference was
made to judgment of this Court reported as Mohd. Habbibuddin Khan
G
v. Jagir Administrator, Government of Andhra Pradesh and Others 31
to contend that as the Abolition and Commutation Regulations abolished
succession claim in respect of atiyat grants under Section 2 of the said
30
AIR 1952 Hyd 163
31
(1974) 1 SCC 82 H
1292 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Act and the power and jurisdiction of Atiyat Court was confined to make
inquiries as to rights, title or interest in atiyat grants and also holding
inquiry into the claim of successions in respect of entitlement to receive
such grants. Reliance has also been placed upon Division Bench
judgment of the High Court reported as K.S.B. Ali v. State of A.P. and
Others32. The petitioner had withdrawn the writ petition with permission
B
to seek appropriate remedy in the Special Leave Petition filed before
this Court against the judgment of the High Court. The Petitioner filed
another writ petition before the High Court. The said writ petition was
dismissed. In an appeal again the order passed in the second writ petition,
this court in a judgment reported as K.S.B. Ali v. State of A.P. and
C Others33 dismissed the claim of the appellant based upon an order passed
by the Atiyat Court.
69. It was submitted that the argument that ‘once a wakf always
a wakf’ would not be applicable on account of statutory abolition of
jagirdars and vesting of jagir land with the State including the lands of
D jagir lands dedicated to temple, mosque and other religious institutions.
If the land given to the religious institutions stands abrogated, the
conditional grant of service to such religious institutions cannot survive
as it is not larger than the jagirdari rights given to religious institutions.
Any right in the wakf would not over ride the right of the Sovereign, who
is the repository of all lands within his estate. Hence, the Abolition and
E Commutation Regulations would supersede any rights in the land including
that of conditional grant for service to a religious institution.
70. Mr. Giri further argued that in terms of 1995 Act, the jurisdiction
of the Tribunal could be invoked only by a person interested therein
apart from Board or mutawalli of a wakf. Though the word ‘any person
F interested therein’ has been substituted by ‘any person aggrieved’ by
the 2013 amendment, therefore, on the date of the filing of the writ
petition, the State could not have invoked the jurisdiction of the Wakf
Tribunal. Referring to judgment of this Court in Rashid Wali Beg v.
Farid Pindari & Ors.34, it was argued that the question involved in the
G said appeal was not validity of the notification or lack of jurisdiction or
procedural impropriety, which has arisen for consideration in the present
appeals.
32
(2007) SCC Online AP 765
33
(2018) 11 SCC 277
34
H (2021) SCC Online SC 1003
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1293
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
71. Mr. C.S Vaidyanathan, learned Senior Counsel appearing for A
the Corporation submitted that the writ jurisdiction of the High Court
cannot be excluded only because there exist alternative statutory
remedies. The right to invoke writ jurisdiction is untrammeled by any
external restrictions. Reference is made to Committee of Management
and another v. Vice Chancellor35 and Addl. Secy. to the Govt. of
B
India v. Alka Subhash Gadia (Smt)36. Reference was also made to
K.K. Kochunni v. State of Madras 37, Whirlpool Corporation v.
Registrar of Trademarks38 and Balkrishna Ram v. Union of India39.
72. It was argued that even if there was analternative remedy
available, the High Court still has the jurisdiction in the following matters-
(1) where the impugned action is in breach of natural justice, (2) where C
the challenge is to an action which is patently erroneous and ex facie
without jurisdiction, (3) or the vires of legislation is challenged, (4) or
where the writ petition has been filed for enforcement of fundamental
rights protected by Part III of the Constitution. It was argued that there
has been a violation of principles of natural justice as State has been D
recorded as owner of the disputed land in the revenue records since
1912-13 and that the Wakf Board failed to file objections before the land
was transferred in favour of the Corporation in 2005.
73. It was contended that the Wakf Board exercises quasi-judicial
jurisdiction under Section 40(1) of the 1995 Act. Such fact is evident E
from two facts, an inquiry which is required to be conducted and the
decision taken after the inquiry, which could be challenged before the
Wakf Tribunal. The legal principle as to when an act of a statutory
authority would be a quasi-judicial act, is that where (1) a statutory
authority empowered under a statute to do any act, (2) which would
prejudicially affect the subject, (3) there is no lis or two contending parties F
and the contest is between the authority and the subject and (4) the
statutory authority is required to act judicially under the statute and the
decision of the said authority is a quasi-judicial. Reference is made to
Kranti Associates (P) Ltd. v. Masood Ahmed Khan40. An inquiry could
be conducted only after hearing the affected parties. Since the decision G
35
(2009) 2 SCC 630
36
1992 Supp (1) SCC 496
37
AIR 1959 SC 725
38
(1998) 8 SCC 1
39
(2020) 2 SCC 442
40
(2010) 9 SCC 496 H
1294 SUPREME COURT REPORTS [2022] 19 S.C.R.
A is subject to the decision of the Wakf Tribunal, therefore, a reasoned
order is required to be recorded by the Wakf Board which could be
tested before the Wakf Tribunal. The jurisdiction of the Wakf Tribunal is
akin to the remedy of appeal against the order passed by the Board.
74. The Errata notification is alleged to be issued without jurisdiction
B as no such notification could be issued summarily without conducting
any inquiry, only on the basis that Manikonda village is a conditional
grant for the service of Dargah. It was further contended that Errata
notification could be issued only in limited circumstances where there
are clerical and arithmetical mistakes from accidental slip or omission,
having parity with Section 152 of CPC. New rights could not be created
C over a large chunk of land under the guise of Errata notification. The
Errata notification rather is in pith and substance, a fresh notification
without following procedures prescribed under the 1995 Act. If the Act
provides a particular method of doing an act, the act has to be performed
in the same manner and all other alternativesst and excluded. It was
D also argued that power under Section 32(2)(n) was only a step-in aid of
a decision to be taken under Section 40 of the Act. Section 32(2)(n) of
the Act empowers the Wakf Board to investigate and determine the
nature and extent of wakf. The Board is thus competent to investigate
and determine the nature of Wakf as a step-in aid for its quasi-judicial
decision in terms of Section 40 of the Act. The determination in Section
E 32(2)(n) has to be read along with Section 40 of the Act. Reference was
made to judgment of this Court reported as Indian National Congress
(1) v. Institute of Social Welfare41.
75. Mr. Ranjit Kumar, learned Senior Advocate appearing for the
M/s Lanco Hills Technology Park Pvt. Ltd. submitted that irrespective
F of the decision on the validity of the Errata notification and the question
whether the subject land is a wakf property or not, the rights of the
appellant as well as thousands of persons in whose favour rights and
interests in the properties have been created are to be protected by the
appellant State and/or Corporation in view of the order passed by this
G Court on 8.5.2012 and in view of the submission of the Wakf Board and
the Dargah. Further reference was made to affidavits filed by the Chief
Executive Officer of the Wakf Board on 7.11.2010 and on 14.4.2011
regarding claim of monetary compensation.
41
H (2002) 5 SCC 685
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1295
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
76. It was argued that no inquiry as envisaged under Section 40 A
of the 1995 Act was made, no notice was issued and no decision was
taken by the Board. There was no document or even an assertion to the
effect that the Board invoked Section 40 or took a decision that 1654
acres of land was wakf property. Reliance is placed upon Subhan Shah
considering pari-materia Section 27 of the 1954 Act with Section 40 of
B
the 1995 Act that the Board could have initiated proceedings under Section
27 of the 1954 Act but in the present case, no suo moto proceedings
were initiated by Board and no notice in this behalf was issued to any of
the interested parties.
77. It was also contended that Section 40 does not envisage
publication of a notification in Official Gazette. The publication of C
notification is only contemplated under Section 5 of the 1995 Act.
Therefore, the argument that Board had exercised powers under Section
40 is absolutely misconceived. It was further contended that the Board
was not categorical as to whether the said decision has been taken under
Section 40 or under Sections 4 and 5 of the 1995 Act. In fact, the Board D
tried to justify the adherence to the procedure prescribed under Sections
4 and 5 of the 1995 Act when it is said that the second Survey
Commissioner was appointed by the State Government, therefore, it is
meaningless to say that no notice was issued by the Survey Commissioner
either to the State Government or to the District Collector before including
the said land as the lands of Dargah. Therefore, question of issuing E
notice to the government did not arise.
78. It was also argued that the bar of jurisdiction of the Civil
Court is not absolute and it is only confined to only those matters which
are required by the Tribunal to be decided under the 1995 Act. The
finding of the High Court is contrary to the judgments in Ramesh F
Gobindram and Anis Fatima Begum. It was averred that since the
Errata notification was based upon fraud and forgery, it is in breach of
Sections 4 and 5 of the 1995 Act. It is also violative of principles of
natural justice and was without jurisdiction and therefore null and void.
79. The High Court has quoted the principles laid down by this G
Court to the effect that a writ would lie even if there is an alternative
efficacious remedy if the impugned action is in breach of natural justice
or the action is patently erroneous and ex facie without jurisdiction.
However, the said principle was not applied in the writ petition before
the High Court. A challenge to the validity and legality of a notification H
1296 SUPREME COURT REPORTS [2022] 19 S.C.R.
A issued by the Wakf Board is admittedly not a matter which the Wakf
Tribunal is required to determine under the 1995 Act. Reliance has been
placed upon Harbans Lal Sahnia v. Indian Oil Corp. 42, Radha
Krishan Industries v. State of Himachal Pradesh43 and Bal Krishna
v. Union of India & Anr.44
B 80. It was further contended that Manikonda village land was
jagir land and subsequent to the commencement of Abolition Regulation,
the conditional grants made in favour of the temples, mosques or any
other institution established for a religious and pious purposes which
includes Dargah, stood abolished. The order of the Nazim Atiyat itself
stated that the Mashrut-ul-Khidmat grant would be subject to the
C provisions of Abolition Regulation. As per the order passed by the Nazim
Atiyat, the commutation amount has been paid to the heirs of the Jagirdar
as per the Commutation Award dated 5.6.1959. Therefore, the order of
the High Court is not sustainable and the appeals deserved to be allowed.
81. In respect of Maulana Azad National Urdu University, it was
D submitted that the 200 acres of land out of 1654 acres of land was
allotted to the University vide order dated 18.03.1998. The appellant is a
Central University established by an Act of Parliament. The possession
of the land was handed over to the University on 23.07.1998. The
University is offering 71 programmes, 19 Departments at under Graduate,
E Graduate, Post Graduate and Ph.D. levels and 6 Research/Training
Centres which has more than 5000 students enrolled. Therefore, the
allotment made to the appellant suffers from gross delay and laches.
H. Arguments of the Respondents
82. Mr. Huzefa A. Ahmadi, learned senior counsel appearing for
F the Wakf Board inter alia contended that the question raised by the
appellants whether the subject land is Wakf property and whether the
said property has been wrongly included in the list of Wakfs falls within
the exclusive jurisdiction of the Wakf Tribunal relying upon Sections 6, 7,
83, 85 and 88 of the 1995 Act. The intention of the legislature is evident
G from the scheme of the Act. The reference is made to the judgments
reported as Rajasthan Wakf Board v. Devki Nandan Pathak & Ors.;
Haryana Wakf Board v. Mahesh Kumar; Board of Wakf, West
42
(2003) 2 SCC 107
43
(2021) 6 SCALE 78
44
H (2020) 2 SCC 442
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1297
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
Bengal & Anr. v. Anis Fatma Begum & Anr.; Punjab Wakf Board v. A
Sham Singh Harike; Telangana State Wakf Board & Anr. v.
Mohamed Muzafar; and Rashid Wali Beg v. Farid Pindari & Ors..45
in support of such argument.
83. It was also submitted that the question as to whether a particular
property is a Wakf property or not cannot be decided in a writ jurisdiction B
in view of the judgment of this Court in Anis Fatma Begum & Anr. It
was contended that the writ court does not decide the question of title
which is a disputed question of fact. Reference was made to the judgments
reported as Union of India v. T.R. Varma and Union of India & Ors.
v. Ghaus Mohammad.46. It was stated that such questions have been
exclusively included in the domain of jurisdiction of the Wakf Tribunal C
under the Act.
84. On merits, it was argued that the order passed by the Nazim
Atiyat on 31.5.1957 has recorded the following findings:
i. Manikonda village was in the list of exempted jagirs. D
ii. The Second Taluqdar in his opinion had stated that Village
Manikonda may be continued in the name of Akbar Hussaini
subject to the service of the Dargah. This opinion was
confirmed by the First Taluqdar.
iii. Manikonda Village was a Mashrut Atiya Shahi grant for E
the service of the Dargah.
iv. While passing the final order in respect of all the villages,
the Village Manikonda and Guntapally were not made
subject to Abolition of Inams Act, as was done in respect
of the other villages. F
85. Subsequently, in a writ petition, the High Court in its order
dated 14.12.1961 held that Manikonda and Guntapally Villages were
conditional service grants in favour of the Dargah. It was thus argued
that once Manikonda village has been held to be Mashrut ul Khidmat,i.e.,
a conditional grant for the service of Dargah, it falls within the definition G
of a Wakf. Further, the order of the Chief Minister dated May 29, 1956
only releases Manikonda village from the supervision of the Court of
45
(2017) 14 SCC 561;(2014) 16 SCC 45;(2010) 14 SCC 588; (2019) 4 SCC 698; (2021)
9 SCC 179; and2021 SCC OnLine SC 1003.
46
AIR 1961 SC 744 H
1298 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Wards and places it with the Government as an interim arrangement
until the Atiyat Court decides the matter. The said order notes the fact
that the properties in question (which includes Manikonda Village) were
meant for service of the Dargah. It wassubmitted that Mohammedan
Law of Wakf owes its origin to a rule laid down by the Prophet and
means “tying up of property in the ownership of God Almighty and the
B
devotion of the profits for the benefit of human beings”. The reference
was made to the judgment reported as Nawab Zain Yar Jung (since
deceased) & Ors. v. Director of Endowments & Anr.47, wherein it is
held that once a founder dedicates a property for wakf, the ownership
of the founder is completely extinguished. Thus, once it is declared that
C a particular property is wakf or any such expression is used implying
wakf or the document shows that there is dedication for a pious or
charitable or religious purpose, the right of the person dedicating the
property is extinguished and the ownership is transferred to the Almighty.
A Mutawalli is appointed thereafter as manager of the wakf. Though
mutawalli is the administrator, governor, superintendent or curator of the
D
wakf property, he has no right in the property belonging to the wakf. The
dedication of a property as Wakf need not specifically be in favour of a
place of worship, khankah, Dargah, cemetery etc. It is enough if the
dedication is made for the purpose recognised by Muslim law as pious,
charitable or religious. Service inam granted to individuals tasked with
E service for purposes which are pious, religious or charitable, meets all the
necessary ingredients of a wakf. Even if the grant of land is for rendering
services to the wakf, that itself is sufficient proof of dedication of such
land as wakf. When once the property is held to be wakf, it always retains
its character as a wakf and the grant of patta to service inamdars and
persons in possession does not in any manner change its character. In
F
case where the inam is for rendering services in connection with a pious,
religious and charitable purpose, then the holder of the inam responsible
for performing the services does not acquire title to that property. If the
land is resumed from such inamdar for non-performance of service and is
re-granted to another person, it only means that the management of the
G wakf is entrusted to another individual to perform service.
86. Mr. Ahmadi further relied upon an order of the Andhra Pradesh
High Court in R. Doraswamy Reddy v. The Board of Wakf A.P.
Hyderabad rep. by its Secretary48 holding that a service inam could be
47
AIR 1963 SC 985
H 48
1978 SCC OnLine AP 117
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1299
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
Wakf. Mr. Ahmadi further relied upon another judgment reported as A
Sayyed Ali & Ors. v. A.P. Wakf Board, Hyderabad & Ors.49 where a
question arose whether a property which had been originally endowed
by the Nizam of Hyderabad for support and the services of a Dargah
would lose the character of being a Wakf property once patta was granted
in favour of Mokhasadars under the Iman Abolition Act. Thus, it was
B
argued that since the Manikonda lands fulfilled the criteria for creation
of a Wakf under Muslim law as a Mashrut Atiya Shahi, and that the
village was being used to bear the expenses for the maintenance of the
Dargah and for celebration of the annual urs, the dedication was for a
purpose recognised by Muslim Law as pious, religious or charitable.
87. It was further submitted that Mashrut ul khidmat has been C
recognized as pious, religious and charitable purpose even before the
1954 Act was amended in 1964. It was further argued that the facts of
the present case and also the order of the Atiyat Court would demonstrate
that the land in question was used ever since the issuance of the Farman
from times immemorial for performance of oodh u gul and the festival D
of urs at the Dargah. The said service of the Dargah and meeting of the
expenses of urs, flowers etc. have been carried on for almost over a
century since the issuance of the Farman. It was argued that without
prejudice to what is argued above, even without a formal dedication of
the property, usage of the property for religious purpose would clothe
the same into the nature of Wakf within the meaning of the 1954 and E
1995 Act.
88. It was argued that the submission of the State Government to
the effect that no Wakf was created as there was no permanent dedication
since title did not pass is ex facie incorrect and misconceived. Firstly,
the said submission proceeds on the incorrect premise that the grant of F
jagirs does not vest title. Referring to the Report of the Royal Commission
on Jagir Administration and Reforms, prior to the promulgation of the
Andhra Pradesh (Telangana Area) (Abolition of Jagirs) Regulation, 1358F,
there were several different categories of jagirs, some permanent and
some temporary. There was nothing to show that Manikonda jagir was G
temporary. Hence, this being a disputed question of fact could only be
determined by the Wakf Tribunal. Secondly, the terms of the grant and
its nature, whether permanent or temporary, could only be deduced upon
the interpretation of the original Farman which would have to be
49
(1998) 2 SCC 642 H
1300 SUPREME COURT REPORTS [2022] 19 S.C.R.
A summoned from the government archives. Thirdly, it was submitted that
without prejudice to what has been stated above, the entire premise of
the argument that formal title must pass to create a permanent dedication
is misconceived. Even in service inams formal title remains with the
Government. This Court has interpreted such inams with a condition of
service to be Wakfs. Since the permanency of dedication constituting a
B
Wakf exists in relation to the service and the interest in the land, it becomes
a Wakf, even if formal title does not pass. In the present case, there is
nothing to show that the original Farman which made the dedication for
condition of service was not permanent. In fact, the narrative given by
the Atiyat Court suggests otherwise.
C 89. It was also contended that the argument raised by the appellants
that since the Atiyat Court did not have jurisdiction to decide the title of
the property as it was only empowered to decide the amount of
commutation payable, therefore the observation that the Manikonda lands
were Mashrut Atiya Shahi grant for the service of the Dargah ought to
D be ignored. In this regard, it is relevant to mention that the Manikonda
lands have not become Wakf property by virtue of the order of the
Atiyat Court, but by virtue of the original grant by the Farman. The
order of the Atiyat Court merely reiterates that position and makes an
observation as to the nature of the property which has never been
contested. Further, if the order dated May 31, 1957 is perused, the issue
E before the Atiyat Court was that whether the 5 villages mentioned in the
order were Mashrut or Zar-Khareed, i.e., conditional service grant for
the Dargah or self-acquired property. In this respect, it was held that the
Manikonda land was a Mashrut Atiya Shahi grant for the service of the
Dargah. This finding was affirmed by the High Court by virtue of its
F order dated December 14, 1961. The State Government was a party at
both stages as it was represented by a government pleader. No objections
were raised as to the said factual position or as to the jurisdiction of the
Atiyat Court. In fact, in the Writ Petition filed by the State, it has been
admitted that the grant was treated as Mashrut ul Khidmat grant. In
such circumstances, the findings having attained finality cannot now be
G allowed to be re-opened or challenged on the basis of an alleged
jurisdictional error. This position is further but tressed by a perusal of
Section 13 of the Atiyat Enquiries Act, 1952 where finality is attached to
the orders passed by the Atiyat Court.
90. Mr. Ahmadi has further submitted that Manikonda Village
H was not a jagir within the meaning of the Abolition Regulation as the
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1301
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
Jagir in terms of Section 2(f) of the Abolition Regulation does not include A
Mashrut ul Khidmat though it includes several other types of jagirs like
paigah, agrahar, umli etc. It was argued that the Report of Royal
Commission on Jagir Administration and Reforms mentions about
conditional grants and certain other jagirs which were permanently given
to the grantee. The Commission had recommended that jagirs intended
B
for religious service should not be resumed. It was further argued that
the vesting of jagirs in the government was not automatic in terms of
Regulation No. 5 of the Abolition Regulation but different dates for different
jagirs were to be notified. No notification pertaining to Manikonda Village
has been brought on record to show that the Government notified an
appointed date for vesting of the Manikonda Village in the Government. C
Still further, the Commutation Award dated June 5, 1959 does not show
any payment made to the Dargah as stipulated under Regulation No. 10
of the Commutation Regulation. It was submitted that the words, jagir,
inam, etc. have been interchangeably used in the present matter, however
what is important is that the land in question has been recognised as a
D
grant for the service of the Dargah, which is a Wakf and would continue
to be a Wakf, despite abolition of jagirs.
91. It is submitted that the second survey could be conducted as
20 years had passed from the date of first survey and that the Wakf
Board had the powers to summon the report concerning Manikonda
Village from the Survey Commissioner under Section 105 of the 1995 E
Act. It was also submitted that the Wakf Board has the power to issue
the Errata notification and Manikonda Village has been correctly included
in the list of Wakf properties as the Wakf Board has the power to collect
information regarding any property which it has the reason to believe
was a Wakf property. It was argued that Sections 4 and 5 form one F
group whereas Section 32 grants power of general superintendence of
all Wakfs on the Wakf Board. Section 32(2)(n) specifically enumerates
the power of the Wakf Board to investigate and determine the nature
and extent of a Wakf property. Such power is unilateral and not
adjudicatory, where the Wakf Board is empowered to conduct its own
investigation and determine the nature and extent of a Wakf property. G
Hence, the Board exercises administrative powers under Section 32(2)(n)
of the 1995 Act. Reference was made to the judgment reported as A.P.
A. Rasheed v. N.N. Khalid Haji & Anr.,50 of the Kerala High Court. It
50
2011 SCC OnLine Ker 4185 H
1302 SUPREME COURT REPORTS [2022] 19 S.C.R.
A was argued that the scope of the words “investigate and determine”
under Section 32(2)(n) is an independent discernment by the Wakf Board,
without requiring the interested persons to be made a part of the process.
Reliance has been placed upon the judgment Attorney General v.
Hughes51. The Wakf Board has power to decide if a property is a Wakf
property or not under Section 40 and the said action of the Wakf Board
B
is subject to the decision of the Wakf Tribunal. Such inquiry is not
adjudicatory but contemplates inquiries in the course of examination of
the records of a particular Wakf and the dedications of property made to
such Wakfs. It was pointed out that sub-sections (3) and (4) of Section
40 relate to the properties which are either registered as a property of
C any Trust or Society. The Wakf Board is empowered to conduct an
Inquiry and if it is satisfied that the property is a Wakf property, it will
call upon the concerned Trust/Society to show cause as to why such
property should not be registered as Wakf property. Thus, prior notice is
necessary to the registering authority in such situation contemplated by
D sub-sections (3) and (4) of Section 40 only. Reliance was placed upon a
judgment of the Calcutta High Court in the case of Amjad Ali Mirza &
Ors. v. Board of Wakfs & Ors.52. It was argued that the power of
Wakf Board to collect information regarding any property which it has
reason to believe to be wakf property is not subordinate to the power of
the State Government to get a survey conducted under Sections 4 to 6
E of the 1995 Act. It was argued that in view of the inherent power of the
Wakf Board to issue Errata notification, it cannot be rendered nugatory
merely because it has not been issued as per the provisions of Sections
4 to 6 of the 1995 Act. Thus, it was contended that issuance of Errata
notification could be traced to Section 32(2)(n) as well as under Section
F 40(1) of the 1995 Act.
92. Mr. Ahmadi has relied upon judgments of this Court reported
as T.N. Wakf Board v. Hathija Ammal (Dead) by LRs & Ors.,53 and
Madanuri Sri Rama Chandra Murthy v. Syed Jalal,54 dealing with
parimateria provisions contained in Section 27 of the 1954 Act to Section
G 40 of the 1995 Act. Hence, the Wakf Board derived its power to include
such property in the list of wakfs either under Sections 4 to 6 or Sections
51
(1899) 48 Weekly Reporter 150
52
C.O. No. 749 of 2018 decided on 20.2.2019
53
(2001) 8 SCC 528
54
H (2017) 13 SCC 174
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1303
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
30 or 40 of the Act. Mr. Ahmadi has referred to the following material to A
conclude that the Manikonda Village was a Wakf property.
“a) The Manikonda village was a service grant for the Dargah.
b) In Sayyed Ali (supra), this Hon ‘ble Court has held that a
grant along with service to Dargah is a Wakf and would
remain as a wakf irrespective of the Abolition Regulations. B
c) In any event, as per the order of the Atiyat Court, the
Manikonda village was a Mashrut Atiya Shahi grant for the
service of the Dargah. This is also apparent from the
Muntakhab issued by the Atiyat Court.
C
d) Thus, the Manikonda village was a Masl, root ul Khidmat,
which fell within the purview of the definition of a Wakf
under the 1954 act and has been specifically included within
the definition of wakf since 1964.
e) The genesis of the fact that Manikonda lands were Wakf D
lands can be traced to the first survey report, wherein, in
the remarks column it has been noted as follows:-
“The Dargah is looked after by the Mutawalli in the pa.st
the jagirs of Manikonda Dargah Hussain Shah Valli and
Gunthapalli were given for the functioning of the Dargah
E
and annual urs. The particulars of the compensation
received now by the mutawalli are not known”
93. It was submitted that while issuing the Errata notification, the
Wakf Board took notice of the following documents:
“i. The Shahi Firman F
ii. The orders of the then Chief Minister, First Taluqdar, Second
Taluqdar and other Officers.
iii. The order of Nazim e Atiyat dated 31.5.1957 as well as
24.09.1958 (rejecting the review petition)
G
iv. The order of the Board of Revenue dated 14.11.1959
v. The order of the Hon’ble High Court in Writ Petition No.
666 of 1959
vi. The Muntakhab No. 98 issued by the Nazim e Atiyat on
26.11.1958 H
1304 SUPREME COURT REPORTS [2022] 19 S.C.R.
A vii. The Report of the First Survey which mentioned in the
remarks column that Manikonda and Guntapalli were allotted
to the Dargah for rendering services to the institution.”
94. It was further argued that the State Government herein is
challenging a notification issued in the State Gazette to contend that
B there is a dispute between the Revenue Department of the State which
is claiming that the subject lands are jagir lands whereas the Minorities
Welfare Department is of the view that the subject lands are the Wakf
properties. Reference was made to a judgment of this Court reported as
Chief Conservator of Forests, Govt. of A.P. v. Collector & Ors.,55 to
make out a strong case of setting up of similar committees by the State
C Governments to resolve the controversy arising between various
departments of the State or the State and any of its undertakings. It
would be appropriate for the State Governments to set up a committee
consisting of the Chief Secretary of the State, the Secretaries of the
concerned departments, the Secretary of Law and where financial
D commitments are involved, the Secretary of Finance. The decision taken
by such committee shall be binding on all the departments.
95. Mr. Ahmadi rebutted the arguments raised by Mr. Giri that
the State Government is precluded from invoking the jurisdiction of the
Tribunal as the State Government is a party in the suit filed in the year
E 2007. It was stated that the Government could always approach the
Tribunal under Section 6 or under Section 83 of the 1995 Act.
96. Mr. Ahmadi referred to an order passed by this Court on May
8, 2012 and July 26, 2013 to contend that such orders do not foreclose
the right of the Board to recover Wakf lands. However, referring to a
F judgment of this Court reported as K.B. Ramachandra Raje Urs (Dead)
by Legal Representatives v. State of Karnataka & Ors.56, Mr. Ahmadi
has submitted that once it is determined that the possession of the property
is contrary to law, the normal relief is to hand over the possession of the
entire land to the rightful owner but if construction has been carried out
on a part of the land, the rightful owner becomes entitled to receive
G compensation in terms of the market value of the land which has been
utilized for construction and is entitled to recover possession of the
remaining part of the land which is vacant. It was further pointed out
that the Government illegally allotted 1226 acres and 29 guntas to various
55
(2003) 3 SCC 472
H 56
(2016) 3 SCC 422
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1305
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
parties out of which allotees have utilized 818 acres and 9 guntas. Thus, A
428 acres and 3 guntas of land is stilllying vacant. The total area which
is lying vacant and which belongs to the Wakf thus comes out to be 836
acres and 23 guntas. Hence, a direction has been sought from this Court
to direct the Wakf Tribunal to order the appellants in all the matters to
handover possession of the vacant part of the property and to pay
B
compensation to the Wakf Board at the market value for the part of the
property utilized in construction.
97. In respect of invocation of writ jurisdiction of this Court, it
was contended that the facts of the present case are disputed and
contentious. It is well settled that the disputed question of facts cannot
be decided in Writ Jurisdiction especially when the Act gives exclusive C
jurisdiction to the Wakf Tribunal to decide such questions.
98. Moreover, it was argued that Mashrut Ul Khidmat land is
specifically excluded from the purview of “Endowment Regulations”. It
has to be treated as endowed in terms of Regulation 447. It was submitted
that grant of condition of service to a non-religious institution is not treated D
as endowment whereas grant made to religious institution could be
considered as endowment. Thus, conditional grant for service of Dargah
was an endowment.
99. In the written submissions filed on behalf of Dargah, it was
submitted that the Wakf Tribunal should be allowed to proceed with the E
suit and that 1204 acres have been allotted and built upon whilst the rest
of the land admeasuring 450 acres is still untouched. The Farman dated
1st Ramzan57, 1333 A.H. (July 13, 1915) wherein the Nizam has released
the grant in favour of Akbar Hussaini, son of Safiullah Hussaini with the
direction that the inam and succession Inquiries should be sorted out. F
The said issue was decided by the Atiyat Court. The Muntakhab dated
November 26, 1958 drawn up after the order the Atiyat Court mentions
that the Village Manikonda is a crown grant with items of income including
excise, as conditional service grant of Dargah. Columns 6 and 7 would
show that total extent of 1898 acres and 18 guntas in Manikonda Village
was given as conditional service grant to the Dargah. As per the practice G
of the ‘Suls-e-Sulsan’, Saifullah Hussainias Sajjada was to get 2/3 rd and
the balance 1/3rd was to be given to the family. Such fact was an input
for the decision of the Wakf Board under Section 40 of the 1995 Act.
57
Also Ramadan H
1306 SUPREME COURT REPORTS [2022] 19 S.C.R.
A The Wakf Board could have arrived at the decision independently. Since
no question arose about the property being wakf, no further inquiry or
proceedings were necessary. The Survey Report format is under the
authority of the Government and, therefore, cannot be taken to be an
independent exercise of the Wakf Board. It was further submitted that
the Errata notification is issued under the authority of the Government.
B
It was submitted that Inam means a grant of rent-free land which was
hereditable and for perpetual occupation. Inams were categorized as
(a) Sanadi Inam and (b) Gaonnisbat Inam. Sanadi Inam was a grant
from the ruling power of the time of grant free from all Government
exactions, in perpetuity whereas Gaonnisbat Inam was land granted rent
C free by the village of its own. Jagir means a grant of land made by the
Government to an individual as a reward for special service. It was thus
argued that in deciding the wakf character of the Dargah property, the
concept of a Jagir and the Jagir Abolition Regulation as also the concept
of an Inam and the Inam Abolition Regulation need to be carefully
examined as the documents produced have mentioned Jagir village, Inam
D lands, Mashrut-ul-Khidmat, Crown grant, Jagir conditional on service,
exempted Jagir, etc. Both statutes have special provisions for religious
and charitable institutions. It was argued that the Commutation Award
dated 5.6.1959 was provisional and does not clearly indicate the amounts
payable in terms of Regulation 10 which provides 90% of the revenue to
E be made over to the religious institution. It was submitted that the unique
concept of a wakf including permanent dedication to the Almighty has to
be kept in mind. Recent legislative clarifications have made Mashrut-ul-
Khidmat part of the definition of wakf. Wakf is different from a trust
where the legal title of property is held by the trustee but the beneficial
title in equity is held by the beneficiary. Furthermore, wakf can be by
F user in the absence of a deed or declaration and once a property is
considered wakf property it remains forever as a wakf property.
100. Mr. Nakul Dewan inter alia raised the argument that even
if, arguendo, principles of natural justice have been violated, the jurisdiction
of the Wakf Tribunal is not ousted. It was further argued that Section
G 13(2) of the Enquires Act gives finality to an order passed therein.
101. It was argued that the core issue in dispute touches upon the
character of the land and cannot be determined by the writ court. That
is because, in a nutshell, for the Appellants to succeed, it needs to be
proved that the Dargah does not have title on the land. However, such
H question cannot be comprehensively determined by a Court exercising
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1307
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
writ jurisdiction under Article 226 of the Constitution because there are A
disputed questions of fact and a final binding judgement of the Atiyat
Court passed on 31 May 1957, which has confirmed that the land was
granted for a religious and pious purpose under Muslim law.
102. It was further argued that the land was a conditional grant
for the service of Dargah and would continue to remain a Wakf. In B
Muntakhab No. 98 issued in the year 1958, the Nazim Atiyat has
mentioned the grant of Jagir village Manikonda as crown grant. In terms
of Section 13 of the Enquiries Act, the orders passed in cases relating to
Atiyat Grants shall not be questioned in any Court of law. It was further
argued that the Wakf Tribunal has been statutorily conferred with
exclusive jurisdiction to deal with the question as to whether the land C
was a wakf property or not. The final determination as whether or not
the appellants have been able to make out their principal case that the
land is not wakf land, the seven issues were suggested. Thus, the
discretion exercised by the High Court to direct all issues to be determined
by the Wakf Tribunal does not require any interference by this Court. D
103. It was also argued that the judgment in Whirlpool
Corporation v. Registrar of Trade Marks, Mumbai & Ors. 58 is
distinguishable as the High Court can decline to exercise its jurisdiction
if it is satisfied that an aggrieved party can obtain relief before an
alternative forum. Reference was made to judgment of this Court E
reported as Commissioner of Income Tax & Ors. v. Chhabil Dass
Agarwal59. In Whirlpool, the High Court relegated the parties to the
statutory forum without examining the contention but in the present case,
the High Court after detailed examination, eventually declined to exercise
jurisdiction under Article 226 of the Constitution in view of the alternate
statutory remedy available to the parties. F
I. Issues to be determined in the present Appeals
104. We have heard learned counsels appearing for the parties at
length over few days wherein the detailed arguments were addressed,
many documents were referred to and the partiesalso submitted the G
written submissions. We find that the following questions arise for
consideration by this Court, including the questions suggested by Mr.
Nakul Dewan:
58
(1998) 8 SCC 1
59
(2014) 1 SCC 603 H
1308 SUPREME COURT REPORTS [2022] 19 S.C.R.
A “(1) Whether the High Court was justified in relegating the
parties to the remedy before the Wakf Tribunal?
(2) Whether the Government was entitled to dispute the validity
of errata notification before the Writ Court under Article
226 of the Constitution?
B
(3) Whether the State is estopped to challenge the notification
inter-alia on the ground that Government Pleader was
present before the Nazim Atiyat and before the High Court
in proceedings against the order passed by Nazim Atiyat
and that the notification was published in State Government
C Gazette?
(4) Whether the notification published at the instance of Wakf
Board is in exercise of power conferred under Section 32
read with Section 40 of the 1995 Act?
(5) Whether the second survey report and/or the order of the
D
Atiyat Court could be said to be sufficient material with
the Wakf Board to publish the impugned Errata
notificationin exercise of powers vested in Section 5 of
the 1995 Act?
(6) Whether the order of the Atiyat Court deals with the
E
question of succession to receive grants or it is relevant to
determine the nature of grantas conditional grant for the
service of the Dargah?
(7) Whether the land in question is Mashrut-ul-Khidmat land
and thus would continue to be wakf land even though, the
F
Jagir of the village was abolished or that the Land vested in
the State under Abolition Regulations or the Commutation
Regulations or under the Iman Abolition Act?
(8) Whether, in the event the errata notification is held valid,
the Dargah would be entitled to recover possession of the
G
Land or alternatively, whether the Respondents are entitled
to recover possession of all vacant portions of the Land
and are entitled to compensation in respect of those
portions of the Land on which construction has been carried
out?”
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1309
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
1. Whether the High Court was justified in relegating the A
parties to the remedy before the Wakf Tribunal?
105. The High Court in its detailed order has discussed the
provisions of law and the documents referred to by the parties. The
findings recorded are indicative of the fact that the High Court had not
agreed with the arguments raised on behalf of the State which is apparent B
from the fact that the Writ Petition No. 23578 of 2007 filed by the State
and the Corporation was dismissed. Before dismissing the writ petition
filed by the State and other aggrieved parties, the High Court did not
agree with the arguments advanced by the learned Advocate General
that on payment of commutation amount in terms of the Abolition and
Commutation Regulations, Mashrut-ul-Khidmat stood reversed and vested C
in the Sovereign. Therefore, the presumption that the title to the tract of
the land in the territory always vested in the Sovereign is not attracted.
Though the said finding is said to be prima facie, but having discussed
the provisions of the statute, the High Court has in fact returned the
finding against the State. Still further, referring to various documents D
relied upon by the parties, the High Court found that the documents
produced needed to be clarified and explained by whichever party who
was relying on them. A deeper probe in relation to the contemporaneous
circumstances was required to be made and the contextual events of
the period when the ancient documents came into existence were
required to be examined, may be by oral or other documentary evidence. E
On perusal of the various documents produced by the parties, the High
Court held that it wasnot possible at all to countenance submission of the
Advocate General that the subject land is not Wakf and it was taken
over by the Government on abolition of jagirs (Paras 35- 38). Such finding
coupled with the conclusion of dismissing the writ petitions shows that F
the High Court did not find any merit in the writ petition filed by the
State, though the High Court was conscious of the fact that interpretation
of documents was required to be made.
106. Mr. Ahmadi while raising an argument that there is an
alternative efficacious remedy available to the State to seek adjudication G
from the Wakf Tribunal, was candid enough to say that the jurisdiction
of the Writ Court cannot be said to be barred. It was argued that since
disputed question of facts arosefor consideration, therefore Writ Court
was not the appropriate forum to decide the disputed question of facts.
Mr. Ahmadi relied upon the judgments as mentioned in para 85 for
supporting such averment. H
1310 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 107. In K.K. Kochunni’s case, the Constitutional Bench held that
mere existence of an adequate alternative legal remedy cannot per se
be a good and sufficient ground for throwing out a petition under Article
32, if the existence of a fundamental right and a breach - actual or
threatened, is alleged and is prima facie established by the petition. It
B was a case where the constitutionality of an Act was challenged as
violative of Article 19(1)(f) or Article 31(1) of the Constitution. The
Court held as under:
“12. In other words he maintains that nobody has the fundamental
right that this Court must entertain his petition or decide the same
C when disputed questions of fact arise in the case. We do not think
that that is a correct approach to the question. Clause (2) of Article
32 confers power on this Court to issue directions or orders or
writs of various kinds referred to therein. This Court may say that
any particular writ asked for is or is not appropriate or it may say
that the petitioner has not established any fundamental right or
D
any breach thereof and accordingly dismiss the petition. In both
cases this Court decides the petition on merits. But we do not
countenance the proposition that, on an application under Article
32, this Court may decline to entertain the same on the simple
ground that it involves the determination of disputed questions of
E fact or on any other ground.”
108. In Rashid Wali Beg, this Court examined all the previous
judgments on the question as to whether any property is a wakf property
or not is triable exclusively by the Wakf Tribunal but the judgments
discussed therein pertained to the invocation of the jurisdiction of the
F Civil Court or of the Wakf Tribunal. None of the judgments dealt with
the invocation of the jurisdiction of the writ court. Anis Fatima Begum,
is again not a judgment arising out of a writ petition filed before the
High Court. It was a case of a suit filed before the Civil Court, though
in para 7, there is an observation that all matters pertaining to wakf
G should be filed in the first instance before the Tribunal and should not
be entertained by the Civil Court or by the High Court straightaway
under Article 226 of the Constitution. The observation made by this
Court in respect of invocation of the jurisdiction of the writ court is
clearly obiter as that was not the question arising for consideration. A
three judge Bench of this Court in Director of Settlements, A.P. &
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1311
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
Ors. v. M.R. Apparao & A nr.60 held that “A judgment of the Court A
has to be read in the context of questions which arose for consideration
in the case in which the judgment was delivered. An “obiter dictum”
as distinguished from a ratio decidendi is an observation by the Court
on a legal question suggested in a case before it but not arising in such
manner as to require a decision. Such an obiter may not have a binding
B
precedent as the observation was unnecessary for the decision
pronounced, but even though an obiter may not have a binding effect
as a precedent, but it cannot be denied that it is of considerable weight.”
Thus, a judgment is a binding precedent on the question which arises
for consideration and not otherwise.
109. The judgment in T.R. Varma arises out of an order of C
dismissal of a government servant under Article 311(2) of the Constitution.
It was in these circumstances, it was held that a person who alleges that
his services have been wrongfully terminated is entitled to institute any
action to vindicate his rights, and in such an action, the Court would be
competent to award all the reliefs to which he may be entitled to, including
D
some which would not be admissible in the writ petition. Further, Ghaus
Mohammad was a case wherein an order passed against the respondent
under the Foreigners Act, 1946 was set aside by the High Court. However,
these judgments are not indicative of the fact that disputed questions of
fact cannot be adjudicated upon in the writ petition under Article 226 of
the Constitution of India. E
110. In Committee of Management, the refusal to grant approval
to the proposal of the Managing Committee of the appellant of removal
of a member of the teaching faculty was challenged by way of writ
petition before the High Court. The petition was dismissed in view of an
alternative remedy availablewith the appellant. This Court held that it is
F
beyond any doubt or dispute that availability of an alternative remedy by
itself may not be a ground for the High Court to refuse to exercise its
jurisdiction. It was held that the High Court may exercise its writ
jurisdiction despite the fact that an alternative remedy is available, inter
alia, in a case where the same would not be an efficacious one. It was
held that in the case of this nature, where the appellant not only questioned G
the validity of the Act but also alleged commission of jurisdictional error
on the part of the Vice Chancellor in implementing the provisions of a
statute, such being an intricate question should ordinarily fall for
determination by the High Court itself.
60
(2002) 4 SCC 638 H
1312 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 111. In Alka Subhash Gadia (Smt), it was held that there is a
difference between existence of power and its exercise. The powers
under Articles 226 and 32 are wide and unimpeded by any external
restrictions and can reach any executive order resulting in civil or criminal
consequences. The Courts have over the years evolved certain self-
restraints for exercising these powers in the interest of administration of
B
justice and for better, more efficient and informed exercise of the said
powers.
112. In Whirlpool Corporation, dispute was pertaining to
registration of the Trademarks. The appellant filed a writ petition
challenging suo motu action taken by the Registrar of the Trademark
C under Section 56(4) of the Trade and Merchandise Marks Act, 1958.
This Court held as under:
“14. The power to issue prerogative writs under Article 226 of
the Constitution is plenary in nature and is not limited by any other
provision of the Constitution. This power can be exercised by the
D High Court not only for issuing writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari for the
enforcement of any of the Fundamental Rights contained in Part
III of the Constitution but also for “any other purpose.
15. Under Article 226 of the Constitution, the High Court, having
E regard to the facts of the case, has a discretion to entertain or not
to entertain a writ petition. But the High Court has imposed upon
itself certain restrictions one of which is that if an effective and
efficacious remedy is available, the High Court would not normally
exercise its jurisdiction. But the alternative remedy has been
consistently held by this Court not to operate as a bar in at least
F
three contingencies, namely, where the writ petition has been filed
for the enforcement of any of the Fundamental Rights or where
there has been a violation of the principle of natural justice or
where the order or proceedings are wholly without jurisdiction or
the vires of an Act is challenged. There is a plethora of case-law
G on this point but to cut down this circle of forensic whirlpool, we
would rely on some old decisions of the evolutionary era of the
constitutional law as they still hold the field.
xxx xxx xxx
20. Much water has since flown under the bridge, but there has
H been no corrosive effect on these decisions which, though old,
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1313
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
continue to hold the field with the result that law as to the A
jurisdiction of the High Court in entertaining a writ petition under
Article 226 of the Constitution, in spite of the alternative statutory
remedies, is not affected, specially in a case where the authority
against whom the writ is filed is shown to have had no jurisdiction
or had purported to usurp jurisdiction without any legal foundation.”
B
113. We do not find any merit in the arguments raised by Mr.
Dewan that the judgment in Whirlpool is distinguishable. In fact, this
Court in appeal against the order of the High Court set aside the notice
issued by the Registrar of the Trademarks.The triple test reiterated by
this Court are where the writ petition has been filed for the enforcement
of any of the fundamental rights or where there has been a violation of C
the principles of natural justice or where the order or proceedings are
wholly without jurisdiction or when the vires of an Act is challenged.
Thus, the order of the Registrar was set aside in a writ petition.
114. The judgment in Balkrishna Ram is in respect of transfer
of an intra-court appeal to the Armed Forces Tribunal against an order D
passed by the learned Single Bench of the High Court. Since similar
question is not arising in the present appeal, we do not find any help can
be taken by the learned counsel for the appellant on the aforesaid
judgment.
115. A three-judge bench in a judgment reported as Babubhai E
Muljibhai Patel v. Nandlal Khodidas Barot and Others61, held that
the High Court is not deprived of its jurisdiction to entertain a petition
under Article 226 merely because in considering the petitioner’s right of
relief, questions of fact may fall to be determined. In a petition under
Article 226, the High Court has jurisdiction to try issues both of fact and F
law. It was held as under:
“9. ……. A writ petition under Article 226, it needs to be
emphasised, is essentially different from a suit and it would be
incorrect to assimilate and incorporate the procedure of a suit into
the proceedings of a petition under Article 226. The High Court is G
not deprived of its jurisdiction to entertain a petition under Article
226 merely because in considering the petitioner’s right of relief,
questions of fact may fall to be determined. In a petition under
Article 226 the High Court has jurisdiction to try issues both of
61
(1974) 2 SCC 706 H
1314 SUPREME COURT REPORTS [2022] 19 S.C.R.
A fact and law. Exercise of the jurisdiction is no doubt discretionary,
but the discretion must be exercised on sound judicial principles.
When the petition raises complex questions of fact, which may
for their determination require oral evidence to be taken, and on
that account the High Court is of the view that the dispute should
not appropriately be tried in a writ petition, the High Court may
B
decline to try a petition ……..”
116. This Court in a judgment reported as Radha Krishan
Industries v. State of H.P.62 examined the question of maintainability of
a writ petition before the High Court even when there was an alternative
remedy available under the Goods and Services Tax Act, 2017. This
C Court held as under:
“25. In this background, it becomes necessary for this Court, to
dwell on the “rule of alternate remedy” and its judicial exposition.
In Whirlpool Corpn. v. Registrar of Trade Marks [Whirlpool
Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1], a two-
D Judge Bench of this Court after reviewing the case law on this
point, noted : (SCC pp. 9-10, paras 14-15)
“……………………………”
27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue
E
writs can be exercised not only for the enforcement of fundamental
rights, but for any other purpose as well.
27.3. Exceptions to the rule of alternate remedy arise where: (a)
the writ petition has been filed for the enforcement of a
fundamental right protected by Part III of the Constitution; (b)
F there has been a violation of the principles of natural justice; (c)
the order or proceedings are wholly without jurisdiction; or (d)
the vires of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the High Court
of its powers under Article 226 of the Constitution in an appropriate
G case though ordinarily, a writ petition should not be entertained
when an efficacious alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself prescribes
the remedy or procedure for enforcing the right or liability, resort
62
H (2021) 6 SCC 771
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1315
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
must be had to that particular statutory remedy before invoking A
the discretionary remedy under Article 226 of the Constitution.
This rule of exhaustion of statutory remedies is a rule of policy,
convenience and discretion.
27.6. In cases where there are disputed questions of fact, the
High Court may decide to decline jurisdiction in a writ petition. B
However, if the High Court is objectively of the view that the
nature of the controversy requires the exercise of its writ
jurisdiction, such a view would not readily be interfered with.”
117. The reliance of Mr. Dewan on Chhabil Dass Agarwal is
again not tenable for the reason that challenge in the aforesaid appeal C
was to the quashing of a notice for assessment under Section 148 of the
Income Tax Act. This Court held as under:
“12. The Constitution Benches of this Court in K.S. Rashid and
Son v. Income Tax Investigation Commission [AIR 1954 SC 207],
Sangram Singh v. Election Tribunal [AIR 1955 SC 425], Union of D
India v. T.R. Varma [AIR 1957 SC 882], State of U.P. v. Mohd.
Nooh [AIR1958 SC 86] and K.S. Venkataraman and Co. (P)
Ltd. v. State of Madras [AIR 1966 SC 1089] have held that though
Article 226 confers very wide powers in the matter of issuing
writs on the High Court, the remedy of writ is absolutely
discretionary in character. If the High Court is satisfied that the E
aggrieved party can have an adequate or suitable relief elsewhere,
it can refuse to exercise its jurisdiction. The Court, in extraordinary
circumstances, may exercise the power if it comes to the
conclusion that there has been a breach of the principles of natural
justice or the procedure required for decision has not been adopted. F
………”
118. It was found that the Income Tax Act provides complete
machinery for assessment/reassessment of tax, imposition of penalty
and for obtaining relief in respect of any improper orders passed by
the Revenue Authorities. The remedy under the statute must be effective G
and not a mere formality with no substantial relief. Having said so, this
Court held that the Writ Court ought not to have entertain the writ
petition filed by the assessee wherein the legality of the notice issued
under Section 148 of the Income Tax Act alone was subject matter of
challenge.
H
1316 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 119. We find that the High Court has examined the merits of the
contention raised including the documents filed so as not to accept the
contentions of the State. Though the High Court has expressed the
same to be prima facie view, but in fact, nothing was left to suggest
that it was not a final order as far as the State is concerned with the
order of the dismissal of its writ petition. Even otherwise, we find that
B
the questions raised before this Court are the interpretation of the
statues, the Farmans issued by Sovereign from time to time and the
interpretation of the document to the facts of the present case. It is not
a case where any oral evidence would be necessary or is available
now. In fact, that was not even the suggestion before this Court. Since
C the question was in respect of interpretation of the statutes and the
documents primarily issued by the Sovereign, the matter needs to be
examined on merits as detailed arguments have been addressed by
learned counsel for the parties. Thus, we find that the High Court
erred in law, in the facts and circumstances of the case, to relegate the
parties to the statutory remedy.
D
2. Whether the Government was entitled to dispute the
validity of Errata notification before the Writ Court under Article
226 of the Constitution?
120. Admittedly, the Government is reflected as the owner of the
E land in question since the year 1912-13. The Government has exercised
its rights of ownership as a successor of the Sovereign. Consequent to
Abolition Regulation and payment of commutation under the
Commutation Regulation, the State Government had transferred land to
the Corporation. A public notice was also issued to invite objections, if
any, to the allotment of the land but since none were received, the
F Corporation made further allotment to various corporate entities. The
Wakf Board is a statutory authority established under the Act and is a
“State” within the meaning of Article 12 of the Constitution. A constitution
Bench of this Court in a judgment reported as Rajasthan State Electricity
Board, Jaipur v. Mohan Lal & Ors63 held “that the expression “other
G authorities” in Article 12 will include all constitutional or statutory
authorities on whom powers are conferred by law. It is not at all material
that some of the powers conferred may be for the purpose of carrying
on commercial activities”.
63
H AIR 1967 SC 1857
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1317
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
121. Similar view that an authority created by a Statute is state A
within the meaning of Article 12 was considered in a judgment reported
as “State of U.P. v. Neeraj Awasthi & Ors.”64 when it was held that
the U.P. Agricultural Produce Market Board constituted by a statute
“UP Krishi Utpadan Mandi Adhiniyam, 1964” is a State within the meaning
of Article 12 of the Constitution.
B
122. Since, the Wakf Board is state, it has act to act fairly and
reasonably. This Court in a judgment reported as Dwarkadas Marfatia
and Sons v. Board of Trustees of the Port of Bombay65 held that
the action of a statutory authority must be reasonable and taken only
upon lawful and relevant grounds of public interest. This Court held as
under:- C
“25. Therefore, Mr Chinai was right in contending that every action/
activity of the Bombay Port Trust which constituted “State” within
Article 12 of the Constitution in respect of any right conferred or
privilege granted by any statute is subject to Article 14 and must
be reasonable and taken only upon lawful and relevant grounds of D
public interest. Reliance may be placed on the observations of
this Court ……… . Where there is arbitrariness in State action,
Article 14 springs in and judicial review strikes such an action
down. Every action of the executive authority must be subject to
rule of law and must be informed by reason. So, whatever be the E
activity of the public authority, it should meet the test of Article
14. The observations in paras 101 and 102 of the Escorts case
[(1986) 1 SCC 264 : 1985 Supp 3 SCR 909] read properly do not
detract from the aforesaid principles.”
123. In another judgment reported as Shrilekha Vidyarthi F
(Kumari) v. State of U.P.66, this Court held that the arbitrariness is the
very negation of the rule of law. Satisfaction of this basic test in every
State action is sine qua non to its validity. This Court held as under:-
“35. It is now too well settled that every State action, in order to
survive, must not be susceptible to the vice of arbitrariness which G
is the crux of Article 14 of the Constitution and basic to the rule of
law, the system which governs us. Arbitrariness is the very negation
64
(2006) 1 SCC 667
65
(1989) 3 SCC 293
66
(1991) 1 SCC 212 H
1318 SUPREME COURT REPORTS [2022] 19 S.C.R.
A of the rule of law. Satisfaction of this basic test in every State
action is sine qua non to its validity and in this respect, the State
cannot claim comparison with a private individual even in the field
of contract. This distinction between the State and a private
individual in the field of contract has to be borne in the mind”.
B 124. In another judgment reported as M.J. Sivani and others v.
State of Karnataka67, this court held that fairplay and natural justice
are part of fair public administration; non-arbitrariness and absence of
discrimination are hallmarks for good governance under rule of law. It
was held as under:-
C “31. It is settled law that every action of the State or an
instrumentality of State must be informed by reason. Actions
uninformed by reason may amount to arbitrary and liable to be
questioned under Article 226 or Article 32 of the Constitution.
The action must be just, fair and reasonable. Rejection of the
D licence must be founded upon relevant grounds of public interest.
Fairplay and natural justice are part of fair public administration;
non-arbitrariness and absence of discrimination are hallmarks for
good governance under rule of law, therefore, when the State, its
delegated authority or an instrumentality of the State or any person
acts under a statutory rule or by administrative discretion, when
E its actions or orders visit the citizen with civil consequences,
fairness and justness require that in an appropriate case, the
affected citizens must have an opportunity to meet the case. Audi
alteram partem is part of the principles of natural
justice………………… ”
F 125. Thus, the State Government, as a juristic entity, has a right to
protect its property through the writ court, just as any individual could
have invoked the jurisdiction of the High Court. Therefore, the State
Government is competent to invoke the writ jurisdiction against the action
of the Wakf Board to declare the land measuring 1654 acres and 32
G guntas as wakf property.
126. An argument was raised that the writ petition should not
have been filed by the State Government challenging the publication of a
notification in the State Gazette and that the dispute between the Revenue
H 67
(1995) 6 SCC 289
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1319
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
Department and Minority Department should be considered by the A
Secretaries of the State government. The said argument raised was
based upon an order passed by this Court as Chief Conservator of
Forests, Govt. of A.P. wherein the reliance was placed on an earlier
judgment reported as Oil and Natural Gas Commission v. Collector
of Central Excise68.
B
127. The Constitution Bench in a judgment reported as Electronics
Corporation of India Limited v. Union of India69 has recalled the
orders passed in the past including the orders passed in Oil and Natural
Gas Commission, the judgment which was relied upon by the High
Court. It was held that the mechanism was set up with a laudatory C
object. However, the mechanism has led to delay in filing of civil appeals
causing loss of revenue. One cannot possibly expect timely clearance
by the Committees. In such cases, grant of clearance to one and not to
the other may result in generation of more and more litigation. The
mechanism has outlived its utility. Therefore, reliance on the judgment in
Chief Conservator of Forests is not tenable and no such objection D
survives.
128. It may be noticed that the writ petition was filed by the Chief
Secretary of the State when inter-departmental communications of the
Revenue and the Minority Welfare Department were at cross purposes.
The communications dated 25.1.2007, 4.5.2007 from the Minority Welfare E
Department are to direct Collector to deliver possession of the balance/
vacant and unutilized land whereas the communication dated 12.6.2007
to the Secretary Revenue Department was for a request that Corporation
should maintain status quo and not allot or alienate any land unless and
until the issue is finalized by State Government. Such letters were F
forwarded to Wakf Board as well. The Minority Welfare Department
was in fact seeking decision by the State Government. These
communications are not the orders passed by the Minority Welfare
Department of the State Government in respect of nature of land so as
to raise the bar of invocation of writ jurisdiction by the State.
G
(3) Whether the State is estopped to challenge the
notification inter-alia on the ground that Government Pleader was
present before the Nazim Atiyat and before the High Court in
68
(1995 Supp (4) SCC 541
69
(2011) 3 SCC 404 H
1320 SUPREME COURT REPORTS [2022] 19 S.C.R.
A proceedings against the order passed by Nazim Atiyat and that
the notification was published in State Government Gazette?
129. It is to be noted that the presence of the Government Pleader
before the Nazim Atiyat was for a limited purpose as the grants were to
be paid by State Government. The State was not a party either before
B the Nazim Atiyat or before the High Court. The State would be bound
by the orders, if it was impleaded as party as it is likely to be affected on
account of the orders passed. The liability of State for payment of grant
was not in dispute but the question was as to whom the grants would be
payable. Thus, the presence of Government Pleader was for the limited
purpose of facilitating the implementation of the orders passed.
C
130. A perusal of the record of the Wakf Board, as extracted
above, shows that the Errata notification was published when the same
was sent by the Chief Executive Officer of the Wakf Board to the
Commissioner, Government Printing Press on 13.03.2006. This publication
of notification was made under Section 5(2) of the 1995 Act under the
D authority of the Chief Executive Officer of the Wakf Board. Hence, the
notification was not at the instance of the State Government but was an
act of the Wakf Board alone.
131. The argument raised that since the Errata notification was
published in State Government Gazette, therefore, the State cannot turn
E around to say that they had no knowledge or that they are not bound by
the notification so published is not tenable. We find that the purpose,
object and scope of the publications in the Official Gazette is not what is
sought to be contended. The Court is to presume the genuineness of any
documents published in any Official Gazette as contemplated by Section
F 81 and Section 114 (e) of the Evidence Act, 1872. The publication in the
Official Gazette is not only forthe affairs of the State but has multiple
uses. In fact, this question has been examined by a Division Bench of
Delhi High Court in a judgment reported as Universal Cans &
Containers Ltd. v. Union of India70, wherein the Court has quoted
various parts of the Gazette required to be published by the Central
G Government. Section 4, Part III of the Gazette is meant for Miscellaneous
Notifications including Notifications, Orders, Advertisements and Notices
issued by Statutory Bodies, whereas Part IV is meant for Advertisements
and Notices issued by Private Individuals and Private Bodies. Similar
70
H 1991 SCC OnLine Del 784
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1321
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
scheme of the publication in the Gazette would be available in the States A
as well. The High Court held as under:-
“8. Under Section 3(39) of the General Clauses Act, 1897, “Official
Gazette” or “Gazette” shall mean the Gazette of India or the
Official Gazette of a State. What is Official Gazette and under
what authority it is published? is yet another question. A Gazette B
is generally understood as an Official Government Journal
containing public notices and other prescribed matters. Legal
Glossary (1983 Edition) issued by the Legislative Department of
the Ministry of Law, Justice and Company Affairs, Government
of India, defines Gazette as “an official newspaper containing
lists of Government appointments, legal notices, dispatches, etc C
xxx xxx
20. Under Section 81 of the Indian Evidence Act, 1872, the Court
shall presume the genuineness of every document purporting to
be in Official Gazette, and read with Section 114 of the said Act D
and Illustration (e) there to, the court can presume that the Official
Gazette was notified on the date as appearing in the Official
Gazette. However, this is only a rebuttable presumption. It can be
rebutted by the evidence to the contrary. As noted above, in the
present case it has been shown that the Official Gazette was
notified on a date after the date appearing on the Gazette. Section E
5 of the General Clauses Act, 1897, provides that where any
Central Act is not expressed to come into operation on a particular
day, then it shall come into operation on the day on which it receives
the assent of the President. This is not applicable in the present
case. Here we are concerned with a notification in the Official F
Gazette”.
132. The Wakf Board is a statutory authority under the 1954 Act
as well as under the 1995 Act. Thus, the Official Gazette had to carry
any notification at the instance of the Wakf Board. Therefore, the State
Government is not bound by the publication of the notification in the G
Official Gazette at the instance of the Wakf Board only for the reason
that it has been published in the Official Gazette. The publication of a
notice in an Official Gazette has a presumption of knowledge to the
general public as an advertisement published in a newspaper. Therefore,
mere reason that the notification was published in the State Government
gazette is not binding on the State Government. H
1322 SUPREME COURT REPORTS [2022] 19 S.C.R.
A (4) Whether the notification published at the instance of
Wakf Board is in exercise of power conferred under Section 32
read with Section 40 of the 1995 Act?
133. It has been argued that the Board is competent to collect
information regarding any property which it has reason to believe to be
B Wakf property and if any question arises as to whether a particular
property is a Wakf property or not, or whether a wakf is a sunni wakf or
a shia wakf, it may, after making such inquiry as it may deem fit, decide
the question.
134. The argument of Mr. Ahmadi is that the Board under Section
C 32(2)(n) has the power to investigate and determine the nature and extent
of wakf and wakf property and to cause whenever necessary, a survey
of such wakf property. It is thus contended that the Wakf Board has a
statutory function to investigate and determine the nature and extent of
wakf. Such power is not dependent upon the provisions of Section 40 of
the 1995 Act as the power to investigate and determine is exhaustive as
D
contained in Section 32(2)(n) of the 1995 Act.
135. Reliance has been placed upon a judgment of Kerala High
Court in A.P.A. Rasheed wherein the Division Bench of Kerala High
Court examined the question as to whether a Wakf Board acting under
Section 32 of the 1995 Act is an adjudicatory body. The High Court held
E that powers under Section 32 are in the nature of powers of
superintendence in administration and empowers the Wakf Board to
pass interim as well as final orders. The Court held as under:
“10. But it cannot be lost sight of that, basically the powers under
Section 32 are in the nature of the powers of superintendence in
F administration. A reading of Section 32 clearly shows that Section
32 does not make any distinction between final orders and interim
orders. When the situation demands, Section 32 certainly
empowers the Wakf Board to pass interim orders as well as final
orders. There is nothing in the language of Section 32 which can
G limit the powers of the Board to pass only final orders and not
interim orders. The sweep of the powers under Section 32(1) as
further explained by Section 32(2), according to us, can leave no
semblance of doubt in our minds that interim as well as final
directions can be issued by the Board under Section 32. The first
contention raised that the Board does not have competence to
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1323
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
issue interim orders like the one issued in the impugned orders A
cannot therefore succeed. This point is answered against the first
respondent.
xxx xxx xxx
12. We repeat that the powers under Section 32 are powers of
superintendence. Such powers are to be exercised primarily to B
ensure that the Wakfs are properly maintained, controlled and
administered. This is very clear from Section 32(1). Section
32(2)(c) clearly suggests that the Wakf Board has powers to give
directions for the administration of the Wakf. Sub clause (o) shows
that the Board has powers to do such acts as may be necessary C
for the control, maintenance and administration of the Wakf.”
136. The High Court in the aforementioned case was examining
scope of Section 32. It held that such powers are to be exercised primarily
to ensure that the wakfs are properly maintained, controlled and
administered. Sub-clause (o) shows that the Board has powers to do D
such acts as may be necessary for the control, maintenance and
administration of Wakf.
137. Mr. Ahmadi has further relied upon an order passed by the
learned Single Bench of the Calcutta High Court in Amjad Ali Mirza’s
case. It may be stated that a sale deed was executed by Secretary of E
State for India-in-Council in favour of five men managing committee on
31.7.1926. One of the questions examined was the scope of Section 40
of 1995 Act. It was held that the impugned resolution of the Wakf Board
under Section 40 of 1995 Act was virtually devoid of reasons. The title
in respect of a property was decided by the resolution but the Board did
not care to record even a semblance of judicial consideration while taking F
the resolution. However, the Court examined the sale deed dated
31.07.1926 to hold that the transfer was not in favour of the committee
members in their personal capacity or for their individual interest but
solely for the worship of the Mohammedan community. The High Court
held as under: G
“54. Section 40 of the Waqf Act empowers the board to collect
information by itself about a property which it has reason to believe
to be waqf property and after making an inquiry as it may deem
fit, to decide such question. The section doe not specify the nature
of inquiry to be undertaken by the board in arriving at a decision in
H
1324 SUPREME COURT REPORTS [2022] 19 S.C.R.
A that regard. In view of the summary nature of the proceeding as
contemplated in the said section, detailed evidence or hearing might
not be taken/given by the board before coming to a decision as to
whether a property is a wakf property. In the present case, what
is to be seen is whether adequate documents and materials were
before the board to declare the suit property to be a waqf property.
B
xxx xxx xxx
58. As such, the deed of 1926 makes it categorically clear that the
transfer was not in favour of the committee members in their
personal capacity or for their individual interest but solely for the
C worship of the Mohammedan community.
xxx xxx xxx
63. Although Section 40 was not complied with in terms in the
strictest sense, the spirit of Section 40 was complied with inasmuch
as the board considered a deed of 1926, the execution of which
D has not been rebutted by the petitioners. The said deed, on a
meaningful reading, can only be interpreted to be a dedication for
the purpose of the God Almighty and worship by the Mohammedan
community, if not directly in the name of God Almighty. The will
of Allah in the Islamic sense has to be manifested through human
agency, for which the investiture contemplated in the 1926 deed
E was in favour of the human beings, who would act as agents to
perpetuate worship by the Mohammedan community.
64. Hence, despite the resolution taken by the board being
technically unsound due to dearth of reasons, the conclusion arrived
at by the Board was correct.”
F 138. Therefore, the judgment of the High Court was interpreting
the document which was subject matter of consideration before the High
Court. The inquiry under Section 40 was found to be perfunctory without
recording any reasons. Therefore, the said judgment is actually not helpful
to the argument of Mr. Ahmadi.
G 139. The question to be examined is that power to investigate and
determine the nature of property is an administrative function as submitted
by the Learned Counsel for the Wakf Board and Dargah or is it a quasi-
judicial function as an inquiry is required to be conducted before any
property is declared to be Wakf property. It was argued by the appellants
H that since such order of the Wakf Board is final, subject only to an
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1325
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
appeal before the Wakf Tribunal, it has to be a reasoned and speaking A
order as in appeal, the correctness of the reasons recorded by the Board
would be required to be examined.
140. The test to determine as to whether an institution discharges
quasi-judicial function came up for consideration before this Court in a
judgment reported as Indian National Congress. This Court held that B
if law requires that an authority before arriving at a decision must make
an inquiry, such a requirement of law makes the authority a quasi-judicial
authority. This Court held as under:-
“25. Applying the aforesaid principle, we are of the view that the
presence of a lis or contest between the contending parties before C
a statutory authority, in the absence of any other attributes of a
quasi-judicial authority is sufficient to hold that such a statutory
authority is quasi-judicial authority. However, in the absence of
a lis before a statutory authority, the authority would be quasi-
judicial authority if it is required to act judicially.
D
27. What distinguishes an administrative act from a quasi-judicial
act is, in the case of quasi-judicial functions under the relevant
law the statutory authority is required to act judicially. In other
words, where law requires that an authority before arriving at a
decision must make an Inquiry, such a requirement of law makes
the authority a quasi-judicial authority.” E
141. In a Constitution Bench judgment reported as Province of
Bombay v. Khushaldas S. Advani & Ors. 71, this Court deduced
principles as to when an authority can be said to exercising quasi-judicial
functions. It was held that the absence of two parties is not decisive in
taking the act of the authority out of the category of quasi-judicial act if F
the authority is nevertheless required by the statute to act judicially. This
Court held as under:
“173. What are the principles to be deduced from the two lines of
cases I have referred to? The principles, as I apprehend them,
are: G
(i) ……
(ii) that if a statutory authority has power to do any act which will
prejudicially affect the subject, then, although there are not two
71
AIR 1950 SC 222 H
1326 SUPREME COURT REPORTS [2022] 19 S.C.R.
A parties apart from the authority and the contest is between the
authority proposing to do the act and the subject opposing it, the
final determination of the authority will yet be a quasi-judicial act
provided the authority is required by the statute to act judicially.
174. In other words, while the presence of two parties besides
B the deciding authority will prima facie and in the absence of any
other factor impose upon the authority the duty to act judicially,
the absence of two such parties is not decisive in taking the act of
the authority out of the category of quasi-judicial act if the authority
is nevertheless required by the statute to act judicially.”
C 142. This Court in a judgment reported as State of Himachal
Pradesh v. Raja Mahendra Pal & Ors.72 held that a quasi-judicial
function stands midway between a judicial and an administrative function.
The primary test is as to whether the authority alleged to be a quasi-
judicial one, has any express statutory duty to act judicially in arriving at
the decision in question. If the reply is in the affirmative, the authority
D would be deemed to be quasi-judicial, and if the reply is in the negative,
it would not be. It was held as under:-
“9. It follows, therefore, that an authority is described as quasi-
judicial when it has some of the attributes or trappings of judicial
functions, but not all. This Court in Province of Bombay v.
E Khushaldas S. Advani [AIR 1950 SC 222 : 1950 SCR 621] dealt
with the actions of the statutory body and laid down tests for
ascertaining whether the action taken by such a body was a quasi-
judicial act or an administrative act. The Court approved the
celebrated definition of the quasi-judicial body given by Atkin, L.J.,
F as he then was in R. v. Electricity Commrs. [(1924) 1 KB 171 :
130 LT 164] in which it was held:
“Whenever any body of persons having legal authority to determine
questions affecting rights of subjects, and having the duty to act
judicially act in excess of their legal authority they are subject to
G the controlling jurisdiction of the King’s Bench Division exercised
in these writs.”
The aforesaid definition was accepted as correct in R. v. London
County Council [(1931) 2 KB 215 : 144 LT 464] and many
72
H (1999) 4 SCC 43
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1327
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
subsequent cases both in England and in India. Again this Court in A
RadeshyamKhare v. State of M.P. [AIR 1959 SC 107 : (1959) 1
MLJ 5 (SC)] relying upon its earlier decision held:
“It will be noticed that this definition insists on three requisites
each of which must be fulfilled in order that the act of the body
may be quasi-judicial act, namely, that the body of persons (1) B
must have legal authority, (2) to determine questions affecting the
rights of parties, and (3) must have the duty to act judicially. Since
a writ of certiorari can be issued only to correct the errors of a
court or a quasi-judicial body, it would follow that the real and
determining test for ascertaining whether an act authorised by a
statute is a quasi-judicial act or an administrative act is whether C
the statute has expressly or impliedly imposed upon the statutory
body the duty to act judicially as required by the third condition in
the definition given by Atkin, L.J.
***
D
Relying on paras 114 and 115 of Halsbury’s Laws of England, 3rd
Edn., Vol. 11 at pp. 55-58 and citing the case of R. v. Manchester
Legal Aid Committee [(1952) 2 QB 413 : (1952) 1 All ER 480]
learned counsel for the appellants contends that where a statute
requires decision to be arrived at purely from the point of view of
policy or expediency the authority is under no duty to act judicially. E
He urges that where, on the other hand, the order has to be passed
on evidence either under an express provision of the statute or by
implication and determination of particular facts on which its
jurisdiction to exercise its power depends or if there is a proposal
and an opposition the authority is under a duty to act judicially. As F
stated in para 115 of Halsbury’s Laws of England, Vol. 11 at p. 57
the duty to act judicially may arise in widely differing circumstances
which it would be impossible to attempt to define exhaustively.
The question whether or not there is a duty to act judicially must
be decided in each case in the light of the circumstances of the
particular case and the construction of the particular statute with G
the assistance of the general principles laid down in the judicial
decisions. The principles deducible from the various judicial
decisions considered by this Court in Khushaldas S. Advani [AIR
1950 SC 222 : 1950 SCR 621] at p. 725 (of SCR) : (at p. 260 of
AIR) were thus formulated”. H
1328 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 143. This Court in a judgment reported at Kranti Associates held
as under:
“47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons,
even in administrative decisions, if such decisions affect anyone
B prejudicially.
xxx xxx xxx
(d) Recording of reasons also operates as a valid restraint on any
possible arbitrary exercise of judicial and quasi-judicial or even
C administrative power.
xxx xxx xxx
(f) Reasons have virtually become as indispensable a component
of a decision-making process as observing principles of natural
justice by judicial, quasi-judicial and even by administrative bodies.”
D
144. In respect to the provisions of Section 32 of the 1995 Act, a
Division Bench of Kerala High Court in a judgmentreported as Ezhome
Sunni ValiyaJuma Masjid v. Kerala State Wakf Board,73 held that
when the Wakf Board is called upon to decide a lis which falls within its
jurisdiction and has to be done based on the materials made available
E before it, after hearing the parties and its decision has far reaching
repercussion on the rights of the parties, it is a quasi-judicial function. It
was held as under:-
“10. The aforementioned provisions dealing with the powers and
duties of the Waqf Board and other related provisions under the
F Act would reveal there may be many acts which may be done by
the Board. Among them, some are obviously administrative in
nature. But, when the Board is called upon to decide a lis which
falls within its jurisdiction and has to be done based on the materials
made available before it, after hearing the parties and its decision
has far reaching repercussion on the rights of the parties, it has a
G quasi-judicial function. (See the decision in PuthencodeJuma -
ath Committee v. Abdul Rahiman, [2011 (3) KLT (SN) 155]). A
quasi-judicial function is an administrative function which the law
requires to be exercised in some respects as if it were judicial. It
73
H 2019 (3) KLT 1064 DB
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1329
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
is subject to some measure of judicial procedure. As regards quasi- A
judicial functions, they cannot be delegated unless the authority
concerned is enabled to do so expressly or by necessary
implication. The general principle is that where any kind of a
decision on a lis has to be made, it must be made by the authority
empowered by the statute concerned and by no one else. We will
B
deal with the same further, a little later.”
145. Thus, we find that the power of the Board to investigate and
determine the nature and extent of Wakf is not purely an administrative
function. Such power has to be read along with Section 40 of the Act
which enjoins “a Wakf Board to collect information regarding any property
which it has reason to believe to be wakf property and to decide the C
question about the nature of the property after making such inquiry as it
may deem fit.” The power to determine under Section 32(2)(n) is the
source of power but the manner of exercising that power is contemplated
under Section 40 of the 1995 Act. An inquiry is required to be conducted
if a Board on the basis of information collected finds that the property in D
question is a wakf property. An order passed thereon is subject to appeal
before the Wakf Tribunal,after an inquiry required is conducted in terms
of sub-section (1) of Section 40. Therefore, there cannot be any unilateral
decision without recording any reason that how and why the property is
included as a wakf property. The finding of the Wakf Board is final,
subject to the right of appeal under sub-section (2). Thus, any decision E
of the Board is required to be as a reasoned order which could be tested
in appeal before the Wakf Tribunal.
146. Therefore, the Wakf Board has power to determine the nature
of the property as wakf under Section 32(2)(n) but after complying with
the procedure prescribed as contained in Section 40. Such procedure F
categorically prescribes an inquiry to be conducted. The conduct of inquiry
pre-supposes compliance of the principles of natural justice so as to give
opportunity of hearing to the affected parties. The proceedings produced
by the Wakf Board do not show any inquiry conducted or any notice
issued to either of the affected parties. Primarily, two factors had led the G
Wakf Board to issue the Errata notification, that is, order of the
NazimAtiyat and the second survey report. Both may be considered as
material available with the Wakf Board but in the absence of an inquiry
conducted, it cannot be said to be in accordance with the procedure
prescribed under Section 40 of the 1995 Act.
H
1330 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 147. Since there is no determination of thefact whether the
property in question is a wakf property after conducting an inquiry in
terms of Section 40(1) of the 1995 Act, the Errata notification cannot be
deemed to be issued in terms of Section 32 read with Section 40 of the
1995 Act. Such determination alone could have conferred right on the
affected parties to avail the remedy of appeal under Section 40 of the
B
1995 Act.
148. The reliance on proviso to Section 40(3) of 1995 Act,
contemplating noticeto the registered trust or society in case the Board
has any reason to believe that any property is Wakf and is registered
C under any of the Acts is absolutely misconceived. These provisions deal
with an altogether different situation. A trust or society is already
registered but the if Board finds it to be Wakf, the statute contemplates
notice to the authority. It does not mean that such trust or society is not
required to be heard. The hearing to Trust or Society would also be as
per the principles of natural justice.
D
(5) Whether the second survey report and/or the order of
the Atiyat Court could be said to be sufficient material with the
Wakf Board to publish the impugned Errata notification in
exercise of powers vested in Section 5 of the 1995 Act?
E 149. The argument in support of the Errata notification dated
13.03.2006 is that it is traceable to the powers conferred on the Wakf
Board under Section 5 of the 1995 Act. The exercise of the publication
of notification is the power conferred on the Wakf Board. Therefore,
the fact that second survey report was not submitted to the State
Government was inconsequential as it was only a ministerial action. Once
F the Board had the power to publish notification after perusing the various
documents, the same could not be said to be illegal only for the reason
that the report was not submitted to the State Government as contemplated
by sub-section (1)of Section 5 of the 1995 Act. The argument raised by
Mr. Ahmadi that the notification is in terms of Section 5 of 1995 Act is
G not tenable. It is an admitted case that the second survey report was not
submitted to the State Government and such report has not even been
forwarded by the Government to the Wakf Board.The Wakf Board may
have a right to requisition of any document in terms of power conferred
under Section 105 of the 1995 Act, but if a procedure is prescribed for
issuance of a notification, it couldbe issued only in the manner prescribed
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1331
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
and not in any other manner. Reference be made to judgment of this A
Court reported as Babu Verghese v. Bar Council of Kerala74 wherein
this Court held as under:-
“31. It is the basic principle of law long settled that if the manner
of going a particular act is prescribed under any Statute, the act
must be done in that manner or not at all. The origin of this rule is B
traceable to the decision in Taylor v. Taylor, (1875) 1 Ch D 426
which was followed by Lord Roche in Nazir Ahmad v. King
Emperor, 63 Ind App 372 who stated as under :
“Where a power is given to do a certain thing in a certain way, the
thing must be done in that way or not at all.” C
32. This rule has since been approved by this Court in Rao Shiv
Bahadur Singh v. State of Vindhya Pradesh, 1954 SCR 1098 and
again in Deep Chand v. State of Rajasthan, (1962) 1 SCR 662.
These cases were considered by a Three Judge Bench of this
Court in State of Uttar Pradesh v. Singhara Singh, AIR 1964 D
Supreme Court 358 and the rule laid down in Nazir Ahmad’s case
(supra) was again upheld. The rule has since been applied to the
exercise of jurisdiction by Courts and has also been recognised as
a salutary principle of administrative law.”
150. A Constitution Bench in a judgment reported as CIT v. Anjum E
M.H. Ghaswala75 reiterated that when a statute vests certain power in
an authority to be exercised in a particular manner, then the said authority
has to exercise the same only in the manner prescribedby the statute
itself. It was held as under:-
“27. Then it is to be seen that the Act requires the Board to exercise F
the power under Section 119 in a particular manner i.e. by way of
issuance of orders, instructions and directions. These orders,
instructions and directions are meant to be issued to other income-
tax authorities for proper administration of the Act, the Commission
while exercising its quasi-judicial power of arriving at a settlement
under Section 245D cannot have the administrative power of issuing G
directions to other income-tax authorities. It is normal rule of
construction that when a statute vests certain power in an authority
to be exercised in a particular manner then the said authority has
74
(1999) 3 SCC 422
75
(2002) 1 SCC 633 H
1332 SUPREME COURT REPORTS [2022] 19 S.C.R.
A to exercise it only in the manner provided in the statute itself. If
that be so since the Commission cannot exercise the power of
relaxation found in Section 119(2)(a) in the manner provided therein
it cannot invoke that power under Section 119(2)(a) to exercise
the same in its judicial proceedings by following a procedure
contrary to that provided in sub-section (2) of Section 119.”
B
151. Therefore, we are unable to agree with Mr. Ahmadi that
since it was only a ministerial part of submission of the second survey
report to the State Government, therefore, the Board hadthe jurisdiction
to publish notification under Section 5.
C 152. The question now to be examined is whether the Board could
issue the Errata notification after a lapse of 17 years from the date of
first notification, i.e., 9.2.1989. The exercise leading to the notification
started with a letter from Syed Safiullah Hussaini, the Mutawalli on
30.1.2005. He is the mutawalli mentioned in the first notification published
in the year 1989. Since the notification was issued with him as Mutawalli,
D then his inaction for 17 long years speaks volumes of his bona-fide in
initiating the process to include the large area of land as wakf.
153. We would need to examine as to what is scope and meaning
of the word “errata”.”Errata” is a termof French origin whichmeans a
thing that should be corrected. It means a mistake in printing or writing.
E Reference may be made to a judgment reported as Parvati Devi v.
State of U.P.76. It was held as under:-
“20. The word “Erratum (French) means a mistake in printing or
writing; a note drawing attention to such a mistake. A list of
mistakes added at the end of a book.
F 21. The word “Errata” is a word of French origin and means ‘a
thing that should be corrected.’ After a book has been printed, it
often happens that certain mistakes are found to have been
overlooked. In later editions, it is usual to insert, a list of such
mistakes and to point out the necessary corrections. These are
called ‘corrigenda’.
G
xxx xxx xxx
23. In Judicial Dictionary by Justice L.P. Singh and Majumdar,
2nd Edition, page 552, while quoting the following passage in Assam
76
H (2007) 6 ALL LJ 50
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1333
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
Rajyik Udyog Karmi Sangha v. State of Assam, (1996) Gau. A
L.R. 236, (at page 241), the word “corrigendum” has been defined
as follows:—
“The dictionary meaning of the word “corrigendum” means things
to be correct. It means there must be an error and there is a
necessity to amend and rectify it. In the garb of corrigendum, a B
rule cannot be altered and or changed, but that is what appears to
have been done in the instant case. In order to alter or modify a
rule the same procedure adopted in making of the rule have to be
gone through.”
24. The meaning and application of the word “corrigendum” has C
been considered by the Courts time and again. In Commissioner
of Sales Tax, U.P. v. Dunlop India Ltd., (1994) 92 STC 571,
this Court held that corrigendum is issued to correct a mistake in
the notification, therefore, would relate back to the date of issuance
of the original notification.
D
25. In Piara Singh v. State of Punjab, (2000) 5 SCC 765 : AIR
2000 SC 2352, the Hon’ble Supreme Court held that there is no
bar on issuing the corrigendum or ‘more corrigenda’ for correcting
the arithmetical error.
xxx xxx xxx E
27. In view of the above, the legal position can be summarised
that a corrigendum can be issued only to correct a typographical
error or omission therein. However, it is meant only to correct
typographical/arithmetical mistake. It cannot have the effect of
law nor it can take away the vested right of a person nor it can F
have the effect of nullifying the rights of persons conferred by the
law”.
154. We find that in the facts of the present case, the Errata
notification is nothing but a fresh notification altogether. Errata is a
correction of a mistake. Hence, only arithmetical and clerical mistakes
G
could be corrected and the scope of the notification could not be enlarged
by virtue of an errata notification. As against 5506 sq. yards of land
notified as wakf property in the year 1989, large area of 1654 acres and
32 guntas of land could not be included under the guise of an errata
notification as it is not a case of clerical or arithmetical mistake but
inclusion of large area which could not be done without conducting a H
1334 SUPREME COURT REPORTS [2022] 19 S.C.R.
A proper Inquiry either under Section 32(2)(n) read with Section 40 or on
the basis of survey report which was called by the State Government by
appointing a Survey Commissioner.
155. It may be noticed at this stage that the second survey report
as called by the Wakf Board from the Survey Commissioner has many
B interpolations visible to the naked eye which creates adoubt on the
correctness of the report which could form as a reasonable base to
confer jurisdiction on the Wakf Board to include such land as a wakf
land.
156. The other part of question is as to whether the order of the
C Atiyat Court could be said to be relevant to determine the nature of jagir
village Manikonda as that of a Wakf land.
157. The Enquiries Act was enacted to consolidate the law
regarding Atiyat grants and enquiries as to claim ofsuccession to, or any
right, title or interest in Atiyat grants by repealing Dastoor-ul-Amal Inams
D and Circular No. 10 of 1338 Fasli (1928 AD). In fact, it appears that a
Circular No. 19 of 1332 Fasli (19.03.1923) was initially issued by the
Sovereign for judicial determination of disputes regarding Atiyat grants.
The Circular No. 10 of 1338 Fasli (1928 AD) was repleaded specifically
in terms of Section 15 of the EnquiriesAct.
E 158. The EnquiriesAct is a special Act to deal with the issues of
succession in respect of grants given by the Sovereign. It is the decision
of the Civil Court which is to prevail on question of succession, legitimacy
etc. The jurisdiction of the Atiyat Courts is limited to the issues which
fall within its jurisdiction. The dispute regarding claim of the commutation
falls within the jurisdiction of the Enquiries Act. The Atiyat grants also
F include the amount of compensation payable under the Inams Abolition
Act. Section 2 provides that all Atiyat grants shall, subject to provision of
Abolition Regulation and the Abolition of Inams Act, continue to be held
by the holders thereof subject to the conditions as laid down in the
documents issued by competent authorities as a result of inam or
G succession inquiries held under the Dastoor-ul-Amal Inams or other
Government orders on the subject and issued by way of continuance or
confirmation of Atiyat grants. Section 3 of the Enquiries Act is subject to
the provisions of Abolition Regulation as well as Inams Abolition Act as
it contemplates that all Atiyat grants would continue to be held by the
holders as laid down in the documents issued by competent authorities
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1335
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
as a result of inam or succession inquiries.Under Section 3-A, the Atiyat A
Courts shall make inquiriesas to any right, title or interest notwithstanding
the enactment of Abolition Regulation. Therefore, the scheme of the
Act is to conduct inquiry in respect of entitlement to receive Atiyat grant
and to decide the right of succession amongst the person entitled to
receive the grants. In fact, the Enquiries Act cease to apply when the
B
commutation sum has ceased to be payable on account of Abolition of
Jagirs under Section 2(1)(b)(i).
159. Atiyat grants have been defined to mean in the case of jagirs
abolished under the Abolition Regulation, the commutation sums payable
under the Commutation Regulation. The Atiyat grant exclude inams under
C
the Inams Abolition Act but contemplates the payment of compensation
within the ambit of Atiyat grants. The inquiry is to be held by Atiyat
Courts in accordance with the provisions of the Act including inquiries
into claims to succession arising in respect of such grants. An appeal lies
to the Board of Revenue against the order of the Nazim Atiyat in terms
of Section 11 of the Act.The decision of the Civil Court is to prevail on D
questions of succession, legitimacy etc. in terms of Section 12 of the
Act. Section 13 gives finality to thedecision of the Atiyat Court.
160. However, sub-section (2) provides that the orders passed in
cases relating to Atiyat grants on or after 18.9.1948 and before the
commencement of the Act by the Military Governor, the Chief Civil E
Administrator or the Chief Minister of Hyderabad or the Revenue Minister
by virtue of powers given or purported to be given to him by the Chief
Minister shall be deemed to be the final orders validly passed by a
competent authority under the law in force at the time when the order
was passed and shall not be questioned beforeany Court of law.
F
161. In Raja Ram Chandra Reddy, the order of the Chief
Minister was treated to be an order of the Sovereign. It was held that no
limitation could have been imported into the effect of Farman of the
Nazim. The Chief Minister’s order would stand validated by Section
13(2) of the Enquiries Act irrespective of the competence of the
G
preceding authorities which dealt with the case. The order passed by
the Chief Minister passed on 29.5.1956 would be a binding order in
terms of Section 13(2) of the Enquiries Act. This Court held as under:-
“12. ………………….Even, on the view suggested by Mr.
Engineer, the Chief Minister’s order in such cases was to be taken
H
1336 SUPREME COURT REPORTS [2022] 19 S.C.R.
A as a substitute for the Nizam’s Firman and the purpose of Section
13(2) was to obviate the possible objection that the Nizam’s Firman
in Atiyat cases was an exercise of his prerogative and could not
be delegated.
If, as contended, the true purpose of Section 13(2) was to
B supply the lack of the imprimatur of the Nizam’s Firman, it is
difficult to see why the operation of this provision should be
confined to such of the Chief Minister’s orders as are preceded
by recommendations of competent authorities.
No such limitation could have been imported into the effect
C of the Nizam’s Firman, at the time when the Nizam was in a
position to issue the Firmans. We have no doubt, therefore, that if
the intended effective order in a particular case was the Chief
Minister’s order, such an order would be validated by Section
13(2) irrespective of the competence of the preceding authorities
who dealt with the case.”
D
162. It is to be noted that the Enquiries Act is applicable in respect
of Atiyat grants alone. Atiyat grants after the commencement of Jagir
Abolition Regulation mean only the commutation sum payable under the
Commutation Regulation or the compensation payable under the Inams
Abolition Act or cash grants etc. The Nazim Atiyat passed its order on
E 31.5.1957, when its jurisdiction was only in respect of commutation
payable after the commencement of the Commutation Regulation.
Factually, the order of the Nazim Atiyat is regarding distribution of shares
in the Biradari portion of Mashrut-ul-Khidmat whereas rest of the property
was to be considered MadadMaash. Since the jurisdiction of the Nazim
F Atiyat was restricted only to the commutation amount payable, the finding
regarding Mashrut-ul-Khidmat land or a Madad Maash land is beyond
the scope of the authority of a Nazim Atiyat on the date when the order
was passed.
163. A perusal of the order of the Nazim Atiyat shows that the
G Nazim was conscious of the factum of the Jagir Abolition Regulation,
Commutation Regulation as well as Abolition of Inams Act. Therefore,
the order was passed subject to the said three statutes. The statutes
have to be read along with the order of the Chief Minister making it
categorical that jagir Manikonda stood vested with the State. Therefore,
the order of Nazim Atiyat is operative only quathe commutation amount
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1337
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
payable to the dependents of Sajjada and the amount payable to the A
Muslim Wakf Board, now represented by the Wakf Board. In terms of
Section 10(2)(i) of the commutation Regulation, 90% of the gross basic
sum referred to in Section 4 of the Commutation Regulation is payable
to the religious and charitable institutions. Therefore, by virtue of the
Abolition and the Commutation Regulation, the claim of the Wakf Board
B
is restricted only to 90% of the amount of the gross basic sum referred
to in Section 4 of the Commutation Regulation. Therefore, after the
Atiyat grants stood abolished in terms of Abolition Regulation, the Atiyat
Courts would have jurisdiction to decide issues relating to succession of
the commutation amount payable to the heirs.
(7) Whether the land in question is Mashrut-ul-Khidmat C
land and thus would continue to be wakf land even though the
jagir of the village was abolished or that the land vested in the
State under Abolition Regulation or the Commutation Regulation
or under the Inams Abolition Act?
164. A perusal of the order of Nazim Atiyat shows that the D
Sovereign has issued a Royal Order on 1st Ramzan, 1333 Hijri i.e.
13.07.1915 directing Sajjada to pay debt amount in lumpsum to the
mortgagee Hussain Bin Muqaddam Jung. The said Farman has been
produced by the learned counsel for the Dargah as reproduced in Para
44 of the order. It has also come on record that the Sovereign in 1249 E
Fasli granted conditional jagir on Oodh-O-Gul (flowers and perfume)
expenditure of the Dargah. It was held that since the property was
mortgaged with the sanction of the minister, it conforms to the conditional
nature of the Maash as no permission would have been necessary if the
property was self-purchased. Later, referring to the order of the Chief
Minister dated 29.5.1956, it was held that Manikonda and Guntapalli F
villages are conditional on service to the Dargah. However,under Issue
No.3, it was held that Syed Safiullah Hussaini as Sajjada shall be entitled
to 2/3rd share according to Sula-e-Sulsan rule in the property for rendering
service but such share was made subject to the Abolition Regulation,
Commutation Regulation and Inams Abolition Act. The 1/3rd share of G
the total property was also allotted by the Nazim Atiyat. It was the said
order of Nazim Atiyat which was given effect to by issuing a Muntakhab
No. 98.
165. The proceedings before the Nazim Atiyat started somewhere
in the year 1923. The rights of the parties were being examined on the H
1338 SUPREME COURT REPORTS [2022] 19 S.C.R.
A date when the plaint was filed before the Atiyat Court. Due to subsequent
action of the Sovereign, a decision to abolish jagirs and consequently for
payment of the commutation was taken. The Enquiries Act was amended
in 1956 which makes the provisions of the Enquiries Act inapplicable
when the commutation sum has ceased to be payable under Section 16
and the Atiyat grants mean the commutation sums payable under the
B
Commutation Regulation after the Abolition Regulation and that even
the commutation sum shall cease to apply to an Atiyat grants. Thus, the
Jurisdiction of the Atiyat Court would be limited to the disputes relating
to Atiyat grants as defined in the Enquiries Act.
(8) Whether the land in question is Mashrut-ul-Khidmatland
C and thus would continue to be wakf land even though, the Jagir
of the village was abolished and that the Land vested in the State
under Abolition Regulation or the Commutation Regulation or
under the Inams Abolition Act?
166. In a celebrated book titled as Mohammedan Law by Syed
D Ameer Ali (compiled from the Authorities in the original Arabic), the
relevant explanation in respect of wakfs of jagirs and grants made by
Kings and Ameers reads thus:
“Jagirs are of two kinds, one where the land has been granted in
fee, that is, first the sovereign has purchased it from the Bait-ul-
E mal and presented it to the grantee, or it is a portion of the royal
domains; 2nd, where the usufruct is only granted and the jagir is
vested in the Crown. In the former case, the grantee may make a
wakf, in the latter case not.”
167. The Privy Council in a judgment reported as Vidya Varuthi
F Thirtha v. Balusami Ayyar & Ors.77 drew a fine distinction between
the Wakf recognised by Muslim law, religious endowments recognised
by Hindu law and the Public Charitable Trust as contemplated by the
English law. The Court held as under:
“15. The conception of a trust apart from a gift was introduced in
India with the establishment of Moslem rule and it is for this reason
G
that in many documents of later times in parts of the Country
where Mahommedan influence has been predominant, such as
Upper India and the Carnatic, the expression wakf is used to
express dedication.
H 77
AIR 1922 PC 123
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1339
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
16. But the Mahommedan law relating to trusts differs A
fundamentally from the English law. It owes its origin to a rule
laid down by the Prophet of Islam: and means “the tying up of
property in the ownership of God the Almighty and the devotion
of the profits for the benefit of human beings.” When once it is
declared that a particular property is wakf, or any such expression
B
is used as implies wakf, or the tenor of the document shows, as in
the case of Jewan Doss Sahoo v. Shah Kubeerooddeen (1837) 2
MIA 390 : 6 WR PC 4 : 1 Suther 100 : 1 Sar 206, that a dedication
to pious or charitable purposes is meant, the right of the wakf is
extinguished and the ownership is transferred to the Almighty.
The donor may name any meritorious object as the recipient of C
the benefit. The manager of the wakf is the Mutwali the governor,
superintendent, or curator. In Jewan Doss Sahu’s case (1837) 2
MIA 390 : 6 WR PC 4 : 1 Suther 100 : 1 Sar 206 the Judicial
Committee call him “ procurator.” It related to a Khankha, a
Mahommedan institution analogous in many respects to a Mutt
D
where Hindu religious instruction is dispensed. The head of these
Khankhas, which exist in large numbers in India, is called a sajjada-
nashin. He is the teacher of religious doctrines and rules of life,
and the manager of the institution and the administrator of its
charities, and has in most cases a larger interest in the usufruct
than an ordinary Mutwalli. But neither the sajjada-nashin nor the E
Mutwalli has any right in the property belonging to the wakf : the
property is not vested in him and he is not a trustee” in the technical
sense.
168. The said enunciation of law was followed in a judgment
reported as Nawab Zain Yar Jung (since deceased) & Ors. v. Director F
of Endowments & Anr.78 wherein, this Court has held as under:
“9. The Act was passed in 1954 for the better administration and
supervision of wakfs. Section 3(l) defines a wakf as meaning a
permanent dedication by a person professing Islam of any
moveable or immovable property for any purpose recognised by G
the Muslim law as pious, religious or charitable and includes:
(i) a wakf by user;
(ii) Mashrut-ul-khidmat; and
78
AIR 1963 SC 985 H
1340 SUPREME COURT REPORTS [2022] 19 S.C.R.
A (iii) a wakf-alal-aulad to the extent to which the property is
dedicated for any purpose recognised by Muslim law as pious,
religious, or charitable;
and “wakif” means any person making such dedication.
Consistently with this definition of “wakf”, a “beneficiary” has
B been defined by Section 3(a) a meaning a person or object for
whose benefit a wakf is created and it includes religious, pious
and charitable objects and any other objects of public utility
established for the benefit of the Muslim community. …”
169. The question as to whether the grant ofMashrut-ul-Khidmat
C would continue to be wakf land needs to be examined. The argument of
Mr. Giri is that Manikonda being a jagir village, the grant was for life
time of the grantee and that such grant was neither heritable nor alienable.
In Ahmad-Un- Nissa Begum, a full bench of the then Hyderabad High
Court dealt with succession to the jagir estate of one Nawab Kamal Yar
D Jung. It was, inter alia, held that Ruler of the State was the absolute
owner of all the lands. He granted usufructuary rights to them including
the jagirdars. It was held as under:
“7. …….The cumulative effect of the authorities referred
to above is that the jagir tenures in this State consisted of
E usufructuary rights in lands which were terminable on the death
of each grantee, were inalienable during his life, the heirs of the
deceased holder got the estate as fresh grantees and the right to
confer the estate was vested in the Ruler and exercisable in his
absolute discretion. Nevertheless, the Jagirdars had during their
lives valuable lights of managing their estates, enjoying the usufructs
F and other important privileges, which conferred considerable
monetary benefits on them.
xxx xxx xxx
12. The effects of these Regulations are that all existing Jagir
tenures in the State were merged in the State lands and the State
G
alone became the ultimate landlord; and the rights to receive
allowances became statutory, heritable and justiciable. Had it not
been for the proviso to sub-S. (2) of S. 21, it could have been
argued with some justification that the rights to receive interim
allowances and compensation required no special sanctions by
H acceptance of the recommendations of the tribunals in pending
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1341
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
succession cases; for under sub-s. (3) of S. 9, the heirs of the A
deceased jagirdars are declared to be entitled to their shares in
the income after the deduction of expenses.
The proviso, however, directs completion of such proceedings
according to the existing law, which term has been defined by
clause (b) of S. 2 of Regulation no LXIX[69] of 1358 Fasli to B
mean the law in force at the commencement of this Regulation
including the Atiyat Law, customs or usage having the force of
law. Thus under the enactment still some sanction is necessary to
complete the heirs title to the income and compensation. I have
said that the right of regranting jagir according to the Atiyat law
was vested in the Ruler as his prerogative on the basis of his C
being the Seignior of the manor and could be exercised only by
him even after the Police Action.
But after the passing of the Regulation and the vesting of the
Seigniory in the Government the power of regranting becomes
statutory and capable of being exercised on behalf of the new D
owner, whoever it may be, by the person entrusted with the
executive powers. It was argued that event before the Police
Action estates of jagirdars escheated to the ‘Diwani’ and never
to the Ruler. I would not attach any importance to such precedents,
for in Atiyat matters the Rulers of this State have not held E
themselves bound by precedents. The position becomes
fundamentally different when there are specific statutory provisions
and there are rules relating to such escheats in the Regulation.
That was the legal position when Shri M.K. Vellodi was appointed
as the Chief Minister.”
F
170. The said judgment was affirmed by this Court in a judgment
reported as Raja Rameshwar Rao and Another v. Raja Govind Rao79
holding that the jagirs granted in Hyderabad State were not hereditary,
though it may be that a son was allowed to succeed to the father in the
normal course. The State, however, always had the right to resume the
grant at its pleasure. It was held that: G
“11. …….But even this letter shows that the State has got
the right to resume the grant at pleasure and if that is so it cannot
be said that the jagirs granted in Hyderabad were permanent and
79
AIR 1961 SC 1442 H
1342 SUPREME COURT REPORTS [2022] 19 S.C.R.
A hereditary, though it may be that a son was allowed to succeed to
the father in the normal course. The State however had always
the right to resume the grant at pleasure. The nature of jagirs in
Hyderabad came to be considered by a bench of five Judges of
the former High Court of Hyderabad in Ahmad-un-Nissa
Begum v. State [AIR 1952 Hyd 163, 167] . Ansari, J., after referring
B
to two cases of the Privy Council of the former State of Hyderabad
as it was before 1947 and certain firmans of the Ruler observed
as follows as to the nature of jagirs in Hyderabad:
“The cumulative effect of the authorities referred to above is that
the jagir tenures in this State consisted of usufructuary rights in
C lands which were terminable on the death of each grantee, were
inalienable during his life, the heirs of the deceased holder got the
estate as fresh grantees and the right to confer the estate was
vested in the Ruler and exercisable in his absolute discretion.
Nevertheless, the Jagirdars had during their lives valuable rights
D of managing their estates, enjoying the usufructs and other
important privileges which conferred considerable monetary
benefits on them.”
171. Similar view was taken by the High Court in a judgment
reported as Sarwarlal and Others v. State of Hyderabad80 which was
E affirmed by this Court in Sarwanlal & Anr. v. State of Hyderabad
(Now Andhra Pradesh) & Ors.81. The issue has been examined in
another judgment reported as M/s Trinity Infraventures Limited v.
The State of Telangana, represented by its Principal Secretary82
wherein it was held as under:
F “20. (xii) These Paigah grantees, were not absolute owners of
the estates. In fact, the Jagirsin Hyderabad State were neither in
the nature of Zamindaries of Madras State nor of Taluqaris of
U.P. While proprietary rights vested in the Zamindars of Madras
and Taluqdars of Qudh, the Jagirdars in Hyderabad were entitled
only to the usufructs of revenue from the estate for life. The
G grant, in law, on the death of Jagirdar. The Paigah estates with
which this case was concerned, was no exception to this. In fact,
since they were burdened with the obligation to maintain Paigah
80
AIR 1954 Hyd 227
81
AIR 1960 SC 862
H 82
2018 SCC Online Hyd 360
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1343
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
troops, they were liable to be resumed by the Nizam if he so A
willed. The Nizam could as well commute the military burden into
an equivalent money payment and requires such payment on pain
of resuming the Paigah Jagir. He was, at any time entitled to state
that he does not require troops but require money in their stead.”
172. The reliance of Mr. Ahmadi upon an order passed by the B
Andhra Pradesh High Court in R. Doraswamy Reddy is not helpful to
the arguments raised. The High Court referred to the judgment of this
Court in Nawab Zain Yar Jung. In the aforesaid case, the appellant in
second appeal before the High Court was asserting his rights as purchaser
of the land after the issue of notification declaring such land to be wakf
property. The argument raised was that the property does not vest in C
Almighty but it vests in the person who is rendering service. It was held
that for non-performance of service, the land can be resumed but does
not mean that the original grantor continues to be the owner of the
property. Once Wakf is created, it continues to be wakf. In the present
case, the grantor of Mashrut-ul-Khidmat i.e. service to Dargah is not an D
individual but the Sovereign in whom the entire interest in the property
vested. Therefore, Sovereign who is ultimate repository of all functions
of the State, can undo the grant of service.The jagir stood abolished with
the Farman and land consequently vested with State. Such vesting would
include the vesting of right of Mashrut-ul-Khidmat, which is ancillary
right as right to provide service to Dargah. The jagir or jagir rights were E
not granted to Dargah.
173. It is the said judgment which was quoted with approval by
this Court in a judgment reported in Sayyed Ali, in the said case, a civil
suit was filed by the Wakf Board disputing long-term lease executed
by Mutawalli. Learned counsel for the appellant referred to a F
compromise (Exhibit A-20) of the dispute between the Government
and the Mokhasadar before the Madras High Court. The compromise
contemplated to spend a portion of income for performing Moharram,
monthly festivals and general upkeep of Dargah. It was held that the
compromise decree constituted inam as a service inam and such grant G
answers to description of wakf even if the Mokhasadars were allowed
to enjoy the property. The said judgment has no applicability to the
facts in the present appeals as the Mashrut-ul-Khidmat, service grant
to Dargah was granted by the Sovereign and therefore Sovereign had
a right to take away that right. Such right was exercised by enacting
H
1344 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Abolition and Commutation Regulations including abolishing the jagirs
granted to temples, mosques and other institutions. Therefore, the
abolition of grant for the service of the Dargah is covered by Section
16 of the Abolition Regulation.
174. The argument of Mr. Ahmadi is that as per the Nazim Atiyat
B order, land of jagir village Manikonda was found to be Mashrut-ul-Khidmat
land i.e. income from the land was to be used for the service of Dargah
that is forpious and religious purposes. The said purpose would be
considered as wakf under the Muslim law even before 1961 when the
same was specifically included in the 1954 Act. Thus, a land which is
dedicated for pious and religious purposes would continue to be wakf in
C view of the principle that once a wakf is always a wakf. It was also
argued that the Endowment Regulations framed in the year 1940 excluded
Mashrut-ul-Khidmat land from the operation of the statue as per the
definition of endowment in Section 2 of the said Act. The reliance is
placed upon Rules 445 and 447 framed in terms of Section 16 of the
D Endowment Regulations contemplating that the estates subject to
condition of service will be regarded as endowed and the proceedings
will be adopted for entering the said estates in the Book of Endowment.
It was also argued that the Abolition Regulation abolished different forms
of jagirs but not the jagir which was a Mashrut-ul-Khidmat land, therefore,
the argument is that the Abolition Regulation would not be applicable in
E respect of the land dedicated to Wakf.
175. The land was mortgaged by Sajjada Safeerullah Hussaini
with the permission of the sovereign in favour of Hasan Bin Muqaddam
Jung on 1st Rajab 1296 Hijri (June 20, 1879). It shows that user of land
for service of Dargah was not as sacrosanct as is sought to be projected.
F In fact, after the death of Safeerullah Hussaini in 1303 H (somewhere in
the year 1886-87), his son Akbar Hussaini submitted an application for
the restoration of Maash. It was on the request of Akbar Hussaini thatthe
Sovereign issued the Farman on 1st Ramzan 1333 (13.7.1915) for the
release of the mortgaged land, subject to the Sajjada, repaying the amount
G he owes to the factory of Hasan Bin Mohsin, who appears to be
successor of the mortgagee who died in the year 1290 Fasli (1880).
176. It is the Sovereign who had granted permission to redeem
land to Akbar Hussaini. The Sovereign was the owner of all lands within
his State. The jagirdars were permitted to enjoy the usufruct thereof.
H Such jagirdar had no right to alienate the property and after his death,
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1345
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
the Sovereign may regrant the same to his son but it is the Sovereign A
who has had the title over the land at all material times.
177. The Shahi Farman dated 1stRamjan 1333 Hijri (13.7.1915)
shows two facts- (1) that the jagir land was mortgaged with Hasan Bin
Mohsin, and (2) after his death, the land was under the supervision of
the Government. Still further, at the time of death of the Sajjada Safeerulla B
Hussaini, his heirs were minors and the Court of Wards was appointed
to manage the estate on behalf of the minors. The Royal Order is to the
effect that Sajjada of Dargah shall regularly pay the amount to the other
shareholders who have the right to receive maintenance allowance
required for their upkeep. If the inaminquiries or inheritance inquiries
are required, the same shall be done as per the rules and regulations. It C
was thereafter that the matter was taken up by Nazim Atiyat on the
basis of a plaint filed by Akbar Hussaini, son of late Safeerulla Hussaini
in terms of the royal order.
178. Section 16 of the Abolition Regulation specifically abolishes
the jagir granted to a temple or mosque or any other institution established D
for a religious or public purpose. In the present case, jagir was not granted
to a mosque or any institution established for religious or public purpose
but the Sajjada was only permitted to use the usufruct of the land of the
village for the service of the Dargah. If the jagir itself stood abolished in
terms of Section 16 of the Abolition Regulation, the usufruct from the E
land as Mashrut-ul-Khidmat was not greater than the jagir granted to a
religious or public purpose. Therefore, the land granted as Mashrut-ul-
Khidmat to Sajjada for rendering service to Dargah would be a minor
right as against the jagir granted to a mosque or any other religious
institution. Therefore, the land which was given for Mashrut-ul-Khidmat
could very well be abolished by the Sovereign while enacting the Abolition F
Regulation.
179. The column 7 of Muntakhab No. 98 describes the property
of village Manikonda as conditional service grant to the Dargah. It does
not override the statutory provisions. The Muntakhab is a consequential
order or decree to the order passed by Nazim Atiyat. Such jurisdiction G
conferred on the Atiyat Court is confined to the entitlement of the persons
to the right or interest in Atiyat grants. Therefore, the Muntakhab
(decree) would not enlarge the scope of the order as neither the jurisdiction
of the Atiyat Courts under the Enquiries Act nor the Abolition Regulation
or the Commutation Regulation, permitted the service to Dargah. H
1346 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 180. Now adverting to the order of the Chief Minister dated
29.05.1956 which is the other document relied upon by Mr. Ahmadi
apart from the reports of the first Taluqdar and second Taluqdar as
mentioned in the order of Nazim Atiyat,the reports of the first Taluqdar
and the second Taluqdar are only aid to facilitate decision by the Nazim
Atiyat but they are not the judicial orders which could be said to be
B
binding. It is the order of the Nazim Atiyat passed under the Enquiries
Act which is relevant and not the reports received from the Revenue
Authorities to arrive at the decision dated 31.05.1957. The order of Nazim
Atiyat in review as well as the dismissal of appeal by Board of Revenue
without any reasons would be relevant only to the extent that such
C proceedings were initiated but remain unsuccessful. Even the order of
the High Court in the writ petition against the order passed by the Board
of Revenue is only an order of affirmation of the order passed by Nazim
Atiyat, though certain observations were made which were not even
part of the order of Nazim Atiyat. Similarly, the Muntakhab No.98 issued
by Nazim Atiyatis only a consequential decree subsequent to the order
D
passed by Nazim Atiyat on 31.05.1957. In fact,the survey report at serial
number 262, in the remark’s column, mentioned that “Dargah is looked
after by Mutawalli and in the past, the Jagirs of Manikonda, Dargah
Hussain Shah Wali and Guntapalli were given for the functioning of
Dargah and annual Urs. The particulars of the compensation received
E used by the Mutawalli are not known”.
181. The argument that Manikonda village was in the list of
exempted jagirs and that in the final order, Manikonda and Guntapalli
villages were not made subject to Abolition of Inams Act does not appear
to be factually correct and in any case is of no consequence. Issue No.3
F in the order of Nazim Atiyat was whether Maqdoom Hussaini has any
preferential right over the claim of Akbar Hussaini. Maqdoom Hussaini
was claiming right as self-purchased property whereas Akbar Hussaini
was claiming as the successor of Sajjada. It was held that it was not the
self-acquired property of Maqdoom Hussaini and thus the Nazim Atiyat
had fixed the share of legal heirs. 1/3 family share of Mashrut-ul-Khidmat
G was in respect of jagir village of Manikonda and Guntapalli, which was
to be worked out separately whereas the rest of the property in other
villages was to be considered as Madad Mash and that the parties were
entitled to their legal shares according to Siham-e-Sharai. Therefore,
the only distinction between Manikonda and Guntapalli villages is that
H they were found to be jagir villages whereas the other villages were
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1347
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
found to be Madad Mash. But all the properties were subject to Abolition A
of Jagirs, Commutation of Regulation and Abolition of Inams Act.
182. Alternatively, even if it is assumed that there is no mention of
Abolition of Jagir Regulation or Commutation Regulation in the order in
respect of Manikonda Village, it would be wholly inconsequential as a
statute would have preference over an order passed in a proceeding B
initiated prior to the commencement of the statute framed under the
authority of the Sovereign. Therefore, on the date of the order passed,
the Nazim Atiyat Court had no jurisdiction in respect of jagir villages or
in respect of payment of inam but had only the jurisdiction to determine
the share of the heirs. Therefore, Muntakhab, the decree is only to give
C
effect of determining the share of all the legal heirs. Hence, the order of
Nazim Atiyat could not have overriding effectover the Abolition Regulation
and Commutation Regulation.
183. The order of the Chief Minister is to the effect that the
Manikonda Village has been handed over to the Government due to
D
abolition of jagir. The order further records that the commutation payable
on abolition of jagir is being sent to the shares of the dependents of the
family of Sajjada and rest to the Muslim Wakf Board towards service
expenses of Dargah. Therefore, the land which was described as a
Mashrut-ul-Khidmat stood vested with the State and the commutation
amount was paid to the dependents of Sajjada and to the Muslim Wakf E
Board. The right, title and interest in the jagir land of Manikonda vested
with the State with the orders of the Chief Minister. The commutation
amount after the abolition of Jagir was also ordered to be paid to the
dependents of the estate and the Muslim Wakf Board.
184. Though the said order of the Chief Minister was mentioned F
by Nazim Atiyat, it was still held that the land is Mashrut-ul-Khidmat to
the Dargah. In terms of the order of the Chief Minister, jagir Manikonda
vested with the State. Such order of Nazim Atiyat has to be read subject
to the order of the Chief Minister who was acting under the Farman
issued by the Sovereign. Such order being that of Sovereign, the order
G
of the Nazim Court, again a creation of the Sovereign will not be operative
to the extent of the order passed by the Sovereign.
185. The order of the Chief Minister shows two things- that the
land of Manikonda village had been handed over to the Government due
to abolition of jagirs and the commutation amount is being sent to the
H
1348 SUPREME COURT REPORTS [2022] 19 S.C.R.
A dependents on the estate as well as to the Muslim Wakf Board.
Therefore, the order passed by the Nazim Atiyat is, in fact, not in
accordance with order passed by the Chief Minister, who was discharging
the functions of the Sovereign.
186. Therefore, the Sovereign having enacted the Abolition
B Regulation and consequent Commutation Regulation was exercising its
right as the owner of the land which at all material times vested with the
Sovereign, subject to usufructuary right of the jagirdar. It was the
Sovereign who had granted right to do service to Dargah. The Sovereign
who had the right to give jagir village for service had a right to take
C away that right as well. Therefore, the abolition of jagir by the Abolition
Regulation was absolute.
187. Therefore, in terms of the Jagir Abolition Regulation, the
rights in the jagir and of Sajjada as holder of right to take care of Dargah
stood abolished. Such is the order of Nazim Atiyat as the order was
made subject to the Abolition and Commutation Regulations and also
D
abolition of Inam under the Inams Abolition Act.
188. In Mohd. Habbibuddin Khan, the appellant was a hissedar
in the Paigah estate. Such estate was abolished under the Abolition
Regulation followed by the Commutation Regulation. The argument raised
was that Atiyat Courts had no jurisdiction to hold an investigation into his
E
claim regarding commutation. This Court held as under:
“8. We regret that we find no substance in the contentions
advanced before us by the appellant’s Counsel. There is no reason
to limit the jurisdiction of the atiyat Courts established under the
Atiyat Enquiries Act, 1952. They are competent to make Atiyat
F
enquiries as to claims to succession to any right, title or interest in
Atiyat grants and matters ancillary thereto. para 2 of the Statement
of Objects and Reasons of Act 28 of 1956 by which the
AtiyatInquiries Act, 1952 was amended contains the following
observation:
G
“2. Although Jagirs have been abolished, cases of inam enquiries
in respect of several Jagirs are yet to be completed and payment
of commutation sum depends on the completion of such enquiries.
It is obvious that in view of the nature of these grants, such enquiries
should be held in atiyat Courts….”
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1349
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
9. ....These questions, however, have to be decided for ascertaining A
the extent of the Paigah for which the appellant claims commutation.
There is obviously a need for investigation. It is not at all our
intention to say that the evidence on which the appellant relies is
either useless or non-conclusive. Whatever may be the weight of
that evidence the matter is to be decided by the special courts viz.
B
the atiyat Courts, which have been set up to enquire into the claims
of Jagirdars and Hissedars. Therefore, it is to the atiyat Court
that the appellant should have gone.”
189. In K.S.B. Ali, the Division Bench of the High Court was
considering a challenge to the tenders called by the Hyderabad Urban
Development Authority for sale of land situated in Kokapet village. The C
dispute was after the death of Nawab Nusrat Jung Bahadur who was
the holder of the land admeasuring 1635 acres and 34 guntas. The High
Court held under the Enquiries Act that the power and jurisdiction of the
Atiyat Court is confined to make an inquiry into the right, title or interest
in the Atiyat grants and hold Inquiry into the claim to succession arising D
in respect of such grants. It was also held that all jagir lands vested in
Diwani and that the erstwhile jagirdars and hissedars were only entitled
to cash grants in whatever name they are called. There was no question
of granting propriety rights under the Enquiries Act. It was held as under:
“29. From a reading of the above referred/reproduced provisions E
of the 1952 Act, and as amended, it could be seen that the power
and jurisdiction of Atiyat Court is confined to making enquiries
into right, title or interest in Atiyat grants and also holding Inquiry
into the claims to succession arising in respect of such grants.
Under Section 3 (pre-amended provision) all Atiyat grants held
before the commencement of the Act were continued subject to F
the provisions of the Hyderabad Enfranchised Inams Act, 1952.
Section 4 made the grants in the Jagir areas or granted by the
erstwhile Jagirdars subject to enquiries and confirmation in
accordance with the 1952 Act.
30. As already noted above, the definition of Atiyat grants was G
amended by the 1956 Amendment Act and Section 2(1)(b)(i)
specifically restricted the Atiyat grants in case of Jagir lands to
the commutation sums payable under the 1359 Fasli Regulation.
xxx xxx xxx
H
1350 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 33. Since all Jagir lands were vested in the ‘Diwani’ and the
erstwhile holders (Jagirdars and Hissedars) were only entitled to
cash grants in whatever name they are called there was no question
of granting property rights to them under the 1952 Act. If the
definition of Atiyat grant is construed to comprehend even grant
of property rights over Jagir lands, it frustrates the entire scheme
B
and renders the provisions of the 1358 and 1359 Fasli Regulations
nugatory.”
190. Thus, the writ appeal was dismissed by the Division Bench.
A special leave petition was filed by the appellant before this Court.
C Such special leave petition and the writ petition were withdrawn on
13.12.2007 with liberty to avail alternative remedy. The alternative remedy
availed was of again filing a writ petition. The Special Leave Petition
was dismissed on 4.10.2017 against the order passed by the High Court
in the second round of litigation.
D 191. The judgment of this Court reported as Nawab Zain Yar
Jung was a case arising out of a writ petition filed by the trustees
appointed by the Sovereign, directing the trustees to register the trust
under the Endowment Regulations and to render accounts of the same.
When the matter was pending before this Court, Muslim Wakf Board
constituted under Section 9 of the 1954 Act decided that the trust was a
E wakf within the meaning of Wakf Act and steps should be taken for
registration of the trust under Section 28 of the said Act. In these
circumstances, the question considered was whether registration of a
trust under Section 28 of the Wakf Act was valid or not. This Court held
as under:
F “18. It is true that a large number of provisions contained in the
document are consistent with the view that the document creates
a wakf as much as they are consistent with the view that it creates
a public charitable trust as distinguished from wakf. It is, however,
patent that there are some clause which are inconsistent with the
G first view, whereas with the latter view all the clauses are
consistent. In other words, if the construction for which the Board
contends is accepted, some clauses would be defeated, whereas
if the construction for which the respondents contend is upheld,
all the clauses in the document become effective. In our opinion,
it is an elementary rule of construction that if two constructions
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1351
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
are reasonably possible, the one which gives effect to all the clauses A
of the document must be preferred to that which defeats some of
the clauses. It is not in dispute that if the document is held to be a
wakf, the directions in the document that charitable purposes should
be selected without distinction of religion, caste or creed, would
obviously be defeated and that undoubtedly supports the conclusion
B
that the document evidences a public charitable trust and not a
wakf.
19. Besides, the clause on which the argument of dedication is
based cannot be divorced from the provision contained in the said
clause which provides charitable purposes without distinction of C
religion, caste or creed and so, intention of the settlor was to help
not only charities which would fall within the definition of a wakf
but also charities which would be outside the definition and so, the
whole argument of dedication breaks down because the idea
dedication is not confined to purposes which are recognised as
charitable by definition of the Act but extends far beyond its narrow D
limits. In this connection it may be relevant to recall that it would
be competent to the Trustees to a substantial part of the income,
and may be even the whole of the income, purpose which may be
outside the limits of wakf by virtue of their powers under clause
3(c) of the document, and that plainly suggests that the vision of E
settlor was not confined to the narrow limits prescribed by the
conditions as to a valid wakf.”
192. This Court held that several features of the trust supported
the conclusion that the trust is not a wakf and does not fall within the
provisions of the 1954 Act. This Court held that on the basis of fair and F
reasonable construction, the document must be held to have created a
trust for public charitable purposes, some of which are outside the limits
of the wakf.
193. Mr. Ahmadi has relied upon an order passed by the Chancery
Division in the case of Hughes. The Chancery Division was considering G
Section 70 of the Local Government Act, 1894. Hughes was a trustee.
The Charity Commissioner found desirable that the land should be
revalued by a competent valuer vide its letter dated 08.03.1897. The
order was of payment of some amount by the Hughes. The said order
has no application whatsoever to the facts of the present case.
H
1352 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 194. In Hathija Ammal, the Wakf Board instituted a suit before
the Civil Court for declaration that the property is a wakf property though
it was not published as the wakf property under Section 5(2) of the 1954
Act. It was held that Wakf Board should have followed the procedure
as required under Sections 4, 5 and 6 or Section 27 of the Act.
B 195. In Sri Rama Chandra Murthy, a suit was filed by the
respondent before the Wakf Tribunal for cancellation of a sale deed.
The appellant asserted that the property is not a wakf property as it was
not notified in the Official Gazette. An application was filed for rejection
of the plaint. It was held that the Wakf Board has not exercised its
jurisdiction under Section 27 of the 1954 Act or Section 40 of the 1995
C Act and therefore, the averment made in the plaint does not disclose the
cause of action for filing the suit. It was held as under:
“16. Thus, it is amply clear that the conducting of survey by the
Survey Commissioner and preparing a report and forwarding the
same to the State or the Wakf Board precedes the final act of
D notifying such list in the Official Gazette by the State under the
1995 Act (it was by the Board under the 1954 Act). As mentioned
supra, the list would be prepared by the Survey Commissioner
after making due Inquiry and after valid survey as well as after
due application of mind. The Inquiry contemplated under sub-
E section (3) of Section 4 is not merely an informal Inquiry but a
formal Inquiry to find out at the grass root level, as to whether the
property is a wakf property or not. Thereafter the Wakf Board
will once again examine the list sent to it with due application of
its mind and only thereafter the same will be sent to the
Government for notifying the same in the Gazette. Since the list is
F prepared and published in the Official Gazette by following the
aforementioned procedure, there is no scope for the plaintiff to
get the matter reopened by generating some sort of doubt about
Survey Commissioner’s Report. Since the Surveyor’s Report was
required to be considered by the State Government as well as the
G Wakf Board (as the case may be), prior to finalisation of the list
of properties to be published in the Official Gazette, it was not
open for the High Court to conclude that the Surveyor’s Report
will have to be reconsidered. On the contrary, the Surveyor’s
Report merges with the gazette notification published under Section
5 of the Wakf Act.”
H
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. 1353
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
196. The land dedicated for pious and religious purpose is not A
immune from its vesting with the State. In Khajamian Wakf Estates v.
State of Madras,83 the validity of the Madras Inam Estates (Abolition
and Conversion into Ryotwari) Act, 1963 (Madras Act 26 of 1963); the
Madras Lease-holds (Abolition and Conversion into Ryotwari) Act, 1963
(Madras Act 27 of 1963) and the Madras Minor Inams (Abolition and
B
Conversion into Ryotwari) Act, 1963 (Madras Act 30 of 1963) was subject
matter of challenge on the ground that the material provisions in those
Acts are violative of Articles 14, 19(1)(f) and 31 of the Constitution. The
impugned Acts were said to be providing for the acquisition by the State
of the “estate” as contemplated by Article 31-A. These legislations were
undertaken as a part of agrarian reform. In regard to the Inams belonging C
to the religious and charitable institutions, the impugned Acts did not
provide for payment of compensation in a lump sum but on the other
hand provision is made to pay them a portion of the compensation every
year. The Constitution Bench held as under: -
“12. It was next urged that by acquiring the properties belonging D
to religious denominations, the Legislature violated Article 26(c)
and (d) which provide that religious denominations shall have the
right to own and acquire movable and immovable property and
administer such property in accordance with law. These provisions
do not take away the right of the State to acquire property belonging E
to religious denominations. Those denominations can own, acquire
properties and administer them in accordance with law. That does
not mean that the property owned by them cannot be acquired.
As a result of acquisition they cease to own that property.
Thereafter their right to administer that property ceases because
it is no longer their property. Article 26 does not interfere with the F
right of the State to acquire property.”
197. In view of the above, we pass the following order:
i) The Civil Appeals are allowed. The orders passed by the
High Court are set aside. G
ii) The Errata notification dated 13.3.2006 is quashed. The
Land admeasuring 1654 Acres and 32 guntas vest with the
state and/or Corporation free from any encumbrance.
83
(1970) 3 SCC 894 H
1354 SUPREME COURT REPORTS [2022] 19 S.C.R.
A iii) In terms of Section 10(2)(i) of the Commutation Regulation,
90% of the gross basic sum referred to in Section 4 of the
Commutation Regulation is payable to the Dargah. The
arrears shall be calculated and paid to the Dargah within 6
months.
B iv) No order as to costs.
CIVIL APPEAL NOS. 10771 OF 2016, 10772 OF 2016 AND
10774 OF 2016
198. These appeals are on behalf of alleged tenants or pattadars
under the jagirdar. It has been asserted that they started paying rent to
C the State after abolition of jagirs and claim possession on some part of
the land which is now part of the impugned Errata notification. The
arguments raised by the appellants have been incorporated in the main
judgment. For the reasons recorded above, the appellants are at liberty
to seek remedy for the redressal of their grievances before an appropriate
D forum in accordance with law. These appeals are accordingly disposed
of.
Bibhuti Bhushan Bose Appeals allowed.
(Assisted by : Aarsh Choudhary, LCRA)
E
***END OF 2022***
F
G
H
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