IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY EIGHTH DAY OF APRIL TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.29937 of 2013 BETWEEN S. Manikya Reddy.
AND ... PETITIONER The A.P. State Wakf Board, Rep. by its Chief Executive Officer, Hyderabad and another.
...RESPONDENTS Counsel for the Petitioner: MS. N. NIYATHA Counsel for the Respondents: MR. M.A.K. MUKHEED – R1 MR. ALI FAROOQ – R2 The Court made the following:
ORDER:
Petitioner prays for a Writ of Certiorari calling for records in I.A.No.479 of 2013 in O.S.No.45 of 2013 dated 10.04.2013 on the file of the A.P. State Wakf Tribunal (for short ‘the Tribunal’), Hyderabad and to quash the same. Petitioner also seeks a Writ of Prohibition against the Tribunal from proceeding and entertaining O.S.No.45 of 2013 on its file.
2. The claim of the petitioner arises on the following facts:
(a) It is stated that vide G.O.Ms.No.232 Municipal Administration dated 18.03.1981 the Government had directed the Hyderabad Urban Development Authority (HUDA) to acquire 65.07 acres of land at Shaikpet village at Hyderabad covered by Sy.Nos.320/1/A, 320/1AA, 320/2, 324, 326/1 and 2 and to construct houses for the members of the Osmania University Employees Cooperative Housing Society Limited. Accordingly, vide award in LA.No.433 of 1983, the HUDA acquired the said land and entered into an agreement with the Osmania University Employees of the Cooperative Housing Society Limited for taking up housing project.
Lay out, accordingly, was approved and plots were allotted to the members of the said society and accordingly, vide G.O.Ms.No.6 Municipal Administration dated 02.01.1989 HUDA executed a sale deed in favour of the society covering an extent of 64.11 acres covering about 955 plots and handed over physical possession of the said land to the said society on 02.03.1989.
(b) Accordingly, the registered sale deeds were executed in favour of individual plot owners by the said society and petitioner claims to be one of the allottees of plot No.351/3 admeasuring 179 sq. yards vide registered sale deed, being Document No.507/2011 dated 05.03.2011. Petitioner states that he constructed compound wall with a small room, which was assigned H.No.8-1-284/OU/351/3. Petitioner claims that second respondent along with antisocial elements tried to encroach on the said land against which he got registered an FIR.No.19/2012 and also filed O.S.No.1341 of 2012 before the XXI Junior Civil Judge, on 18.06.2012 and obtained ad interim injunction in I.A.No.220 of 2012, which was later made absolute on 16.07.2012.
(c) Thereafter, the second respondent filed O.S.No.45 of 2013 before the Tribunal seeking relief of declaration that the schedule property viz. 360 sq. yards appurtenant to Jama Masjid, being part of same Sy.No.320/1A, 320/1AA and bearing H.No.8-1-284/OU/30/10 as wakf property and thereby, declare the sale deed claimed by the petitioner as illegal and void and consequently, for possession by removing encroachment and for permanent injunction etc. In the said suit, the second respondent also filed an application for interim injunction vide I.A.No.479 of 2013 and obtained ex parte interim injunction by order of the Tribunal dated 10.04.2013. Aggrieved thereby, the petitioner filed the present petition seeking Writ of Certiorari and Writ of Prohibition.
3. In the present writ petition, the A.P. State Wakf Board is impleaded as first respondent and the plaintiff in O.S.No.45 of 2013 is arrayed as second respondent and the reliefs sought for are based upon the following specific contentions:
(i) The schedule property, which is subject matter of O.S.No.45 of 2013, is not notified in the official Gazette under Section 5(2) of the A.P. Wakf Act, 1995 (for short ‘the Act’) and it is not a notified wakf.
(ii) The said property is not registered with the A.P. Wakf Board, which is a condition precedent for the Tribunal to exercise its jurisdiction.
(iii) The respondents are, for the first time, claiming ownership and title ignoring that 25 years ago, HUDA executed sale deed dated 22.03.1999 in favour of the vendor of the petitioner and that since then the vendor and thereafter, the petitioner are enjoying the property and prima facie title and possession was recognized by the civil Court while granting injunction in favour of the petitioner in I.A.No.220 of 2010 in O.S.No.1341 of 2012. It is, therefore, claimed that when the civil Court is already seized of the matter, the Tribunal could not have entertained the suit.
4. Learned counsel for the petitioner has very vehemently contended in support of the writ petition, as prayed for, including the question that a combined relief of Writ of Certiorari as well as Writ of Prohibition can be sought for.
5. It may be mentioned that that Registry had raised objection in that respect as to maintainability of the writ petition seeking a combined relief of Writ of Certiorari and Writ of Prohibition.
That objection was overruled by this Court by order dated 10.10.2013 and later the writ petition was admitted and interim stay of all further proceedings was granted on 11.10.2013. After the respondents have appeared and contested in the matter through their respective counsel, that question also needs to be finally decided.
6. So far as the question of maintainability of the writ petition, as mentioned above, is concerned, the decision of the Supreme Court in
HARI VISHNU KAMATH v. SYED AHMAD ISHAQUE[1] answers the
question in favour of the petitioner. It would, therefore, be profitable to notice the relevant portion of the said decision as under:
“15. The first respondent relied on the decision in Clifford O'Sullivan [1921] 2 A.C. 570 as authority for the position that no writ could be issued against a Tribunal after it had ceased to exist. There, the facts were that the appellants had been tried by a military Court and convicted on 3-5-1921. They applied on 10-5-1921 for a writ of prohibition against the officers of the Court, and that was refused on the ground that they had become functus officio. The respondent contended that on the same reasoning certiorari against the decision of an Election Tribunal which had become functus officio should also be refused, and he further relied on the observations of Atkin, L.J. in Rex v. Electricity Commissioners; London Electricity Joint Committee Co. (1920), Ex parte [1924] 1 K.B. 171 as establishing that there was no difference in law between a writ of prohibition and a writ of certiorari. What is stated there is that both writs of prohibition and certiorari have for their object the restraining of inferior courts from exceeding their jurisdiction, and they could be issued not merely to courts but to all authorities exercising judicial or quasi-judicial functions. But there is one fundamental distinction between the two writs, and that is what is material for the present purpose. They are issued at different stages of the proceedings. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition, and on that, an order will issue forbidding the inferior court from continuing the proceedings. On the other hand, if the court hears that cause or matter and gives a decision, the party aggrieved would have to move the superior court for a writ of certiorari, and on that, an order will be made quashing the decision on the ground of want of jurisdiction. It might happen that in a proceeding before the inferior court a decision might have been passed, which does not completely dispose of the matter, in which case it might be necessary to apply both for certiorari and prohibition - certiorari for quashing what had been decided, and prohibition for arresting the further continuance of the proceeding. Authorities have gone to this extent that in such cases when an application is made for a writ of prohibition and there is no prayer for certiorari, it would be open to the Court to stop further proceedings which are consequential on the decision. But if the proceedings have terminated, then it is too late to issue prohibition and certiorari for quashing is the proper remedy to resort to. Broadly speaking, and apart from the cases of the kind referred to above, a writ of prohibition will lie when the proceedings are to any extent pending and a writ of certiorari for quashing after they have terminated in a final decision.”
In view of the above decision, which authoritatively held, there is no impediment in seeking a combined relief of Writ of Certiorari and Writ of Prohibition, the present writ petition is clearly maintainable.
7. So far as merits are concerned, learned counsel for the petitioner contends that under the scheme of the Act, every wakf institution is required to be notified in the A.P. Gazette after the survey, as contemplated under the Act, is conducted. The Act further provides that a property identified as wakf institution is required to be registered and hence, the registration of the property as a wakf property and its notification in the official gazette in terms of the provisions of the Act are, therefore, essential to be proved and only, thereafter, the wakf institution can approach the tribunal.
Thus, according to the learned counsel for the petitioner, unless a survey of the wakf, as contemplated under Chapter II, is conducted by the Wakf Commissioner and such list, after the survey, is published, neither the Board nor the Tribunal can exercise jurisdiction merely on the basis that the second respondent is a wakf. Learned counsel for the petitioner, therefore, submits that the Tribunal would have no jurisdiction to act, when, admittedly, the wakf, in question, is neither notified nor registered.
8. Learned counsel for the petitioner placed strong reliance upon the decisions of the Supreme Court in BHANWAR LAL v. RAJASTHAN BOARD OF MUSLIM WAKF[2]; BOARD OF MUSLIM WAKFS,
[3]
RAJASTHAN v. RADHA KISHAN a n d RAMESH GOBINDRAM
[4] (DEAD) THROUGH LRS. v. SUGRA HUMAYUN MIRZA WAKF .
9. Learned standing counsel for the first respondent Board, however, submitted that for exercising jurisdiction by the Tribunal it is immaterial whether the wakf institution is registered or not and in support of that, he placed reliance upon a decision of a Division Bench of this Court in
[5] ANDHRA PRADESH WAKF BOARD v. S. SYED ALID MULLA .
Learned standing counsel also placed reliance upon a judgment of the Karnataka High Court in MOHAMMED GHOUSE v. THE SECRETARY, [6] KARNATAKA BOARD OF WAKFS .
Learned standing counsel, therefore, contends that irrespective of registration and notification of an institution as a wakf institution, the Wakf Act 1995 applies to all the wakfs and as such, it cannot be said that the Tribunal lacks jurisdiction to entertain the suit filed by the second respondent.
10. Learned counsel for the second respondent contends that creation of a wakf may be under different categories, as is evident from the definition of Wakf under the Act. The definition includes a wakf by user even if there is no dedication and according to the learned counsel, the Masjid on the suit schedule property exists from over decades. Learned counsel has also filed memos in support of his plea in the counter affidavit that the wakf board had already appointed a Managing Committee to manage the affairs of the said Masjid and it also examined the proposals and approved the proposal and had sent to the Government for permission to construct a new Masjid. Learned counsel, therefore, contends that the Masjid was in existence and on account of attempts of encroachment, the suit aforesaid had to be filed before the Tribunal, which is clearly maintainable, as any dispute relating to a wakf property is triable only by the Tribunal. Learned counsel also placed reliance upon a decision of the decision of the Supreme Court in SAYYED
[7]
ALI v. ANDHRA PRADESH WAKF BOARD where in it was held in para
14 as under:
“14. Lastly, it was contended by learned counsel for the appellant that once patta, under the Inams Act, having been granted in favour of Mokhasadar, it was not open to the High Court to hold that the property was Wakf property. In other words, the argument seems to proceed on the basis that once patta has been granted under the Inams Act to Mokhasadwar, the land has ceased to be a wakf property. It may be stated that a wakf is a permanent dedication of property for purposes recognized by Muslim law as pious religious or charitable and the property having been found as Wakf would always retain its character as a Wakf. In other words, once a Wakf always a Wakf and the grant of patta in favour of Mokhasadar under the Inams Act does not, in any manner, nullify the earlier dedication made of the property constituting the same as Wakf. After a Wakf had been created, it continues to be so for all time to come and further continues to be governed by the provisions of the Wakf Act and a grant of patta in favour of Mokhasadar does not affect the original character of the Wakf property. We accordingly find no substance in last argument of learned counsel for the appellant.”
11. Learned counsel also placed reliance upon a Division Bench judgment of this Court in D. VENKATA KRISHNA RAO v. GOVERNMENT OF
[8]
ANDHRA PRADESH where this court elaborately considered the
provisions of the Act and held in para 72 as under:
“72. In View of the binding precedents of the Supreme Court directly on the point as to the bar of writ petitions in relation to 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 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 any disputed question of fact or the issue raised in these writ petitions is beyond the purview of jurisdiction of Wakf Tribunal.
Similarly, another Division Bench judgment in ALLAUDDIN
[9]
CHARITIES AND ZAKATH WAKF v. HAMEED ALI is relied upon and
particularly, paras 26, 29 and 31 are relied upon.
12. Before I consider the rival contentions of the parties, it is necessary to notice the relevant provisions of the Wakf Act, 1955, as amended by Wakf (Amendment) Act, 2013, as under.
13. Section 2 of the Act provides that this Act would apply to all the wakfs in India and exception expressly is made only with respect to Dargah Khawaja Saheb, Ajmer to which the Dargah Khawaja Saheb Act, 1955 applies. The word ‘Wakf’ as defined under Section 3 (r) of the Act is as under:
“3(r) "wakf" means the permanent dedication by a person professing Islam, 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 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;
(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, religious or charitable, and" wakf" means any Person making such dedication-;”
The definition of wakf, which is extracted above, would thus show that a wakf is created either by dedication or by user and it is not necessary that Deed of Wakf is essential to create a wakf.
Thus, a Wakf, as contemplated under the definition above, once created continues to be a wakf for all times to come.
14. The regulation of the wakf, like the Hindu religious institutions under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, is governed by the Wakf Act, 1955 and now the Wakf (Amendment) Act, 2013 with effect from 20.09.2013. Earlier to the present Wakf Act, in the Hyderabad State, the Hindu charitable and religious institutions as well as the wakfs were regulated by the Hyderabad Endowments Regulations. After the enactment of the Wakf Act, 1954 by the Parliament, the aforesaid Hyderabad Endowments Regulation in Telangana area was repealed and the Wakf Act, 1954 provided for regulation of administration of wakf through the Wakf Boards created under the aforesaid Act. The resolution of disputes under the Wakf Act, 1954 were, however, with the common law Courts viz. civil Courts and it is only under the Wakf Act, 1995, separate Tribunal was created under Chapter VIII of the Act and particularly, under Section 83 of the Act, the power and jurisdiction was vested with the Tribunal with regard to resolution of all disputes relating to wakf properties. Under Section 6 of the Act, even the disputes as to whether the property is a wakf property or not was also subject to exclusive adjudication by the Tribunal.
15. It may be noticed that while conferring jurisdiction on the Tribunal, the enactment does not prescribe that the said jurisdiction is confined only with respect to wakfs, which are registered and the wakfs, which are notified wakfs. As is evident from Section 2, the Act itself will apply to all the wakfs. Hence, irrespective of notification or registration every wakf falls within the sweep of the Act and when the Act applies, undoubtedly, the Tribunal would have jurisdiction.
16. In this context, it is useful to refer to Section 1(3)(a) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987.
“1(3) It applies to, -
(a) all public charitable institutions and endowments, whether registered or not, in accordance with the provisions of the Act, other than Wakfs governed by the provisions of the Wakf Act, 1954.”
The present Act succeeds the 1966 Act and in both the Acts Section 1(3) provides that the provisions of the Act would apply to every Hindu religious and charitable institutions and endowments irrespective of whether such institution is registered or not.
17. In my view, therefore, the registerability of the institution under the Act is merely an enabling provision and the applicability of the regulating Act does not depend upon the registration or otherwise.
It is, therefore, difficult to accept the primary contention of the learned counsel for the petitioner that every wakf institution must be a notified wakf and must be registered and only, thereafter, would fall within the jurisdiction of the Tribunal. The said argument, in other words, proceeds to claim that unless a wakf institution is notified and registered, the same would not fall within the sweep of the Act itself. In my view, such an interpretation is not only contrary to the object and purpose of the Act but would also be contrary to the dedication under which the institution is created, as such a dedication can be easily defeated by excluding the operation of the entire Act together by excluding the adjudicatory control of the Tribunal. None of the judgments relied upon by the learned counsel for the petitioner support the aforesaid contentions. Moreover, such contentions did not fall for consideration in any of the said judgments.
18. In the Division Bench decision of this Court in ANDHRA PRADEHS WAKF BOARD v. S. SYED ALI MULLA[10] it was noticed in para 14 that “the limitation cannot be imported that the Act applies only to wakfs registered under the Act and not to wakfs not registered under the Act. The general superintendence of all Wakfs in the State shall vest in the Board established fro the State irrespective of the question whether the wakf is registered or not registered”. Similar question was considered by a learned single Judge of the Karnataka High Court in MOHAMMED GHOUSE’s case (6 supra) where in was held that “A Masjid or Mosque is a place of worship of God and it is not capable of human ownership or possession. It belongs to God and is dedicated to His worship. Thus, a Maszid or Mosque is Wakf as defined in the Act whether it is or not registered. It is the bounden duty of the authority exercising powers under Sections 4 and 5 of the Act to enlist Mosque or Maszid as Wakf and it is also the duty of the Board to register a Mosque or Maszid as Wakf. That being so, it is not possible to hold that Jama Maszid in question cannot be considered to be the Wakf coming under the purview of the Act, because it is not registered .. Merely because it is not included as contended by the petitioner, in the list of Wakfs, it does not cease to be a Wakf. As long as it does not cease to be a Wakf, and it continues to be a Wakf, it comes under the purview of the Act ...”.
19. Learned counsel for the second respondent pointed out para 10 of the decision of the Supreme Court in BOARD OF WAKF, WEST BENGAL v.
[11]
ANIS FATIMA BEGUM wherein it was held as follows:
“10. In our opinion, all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India.”
Similarly, a Division Bench decision of this Court relied upon by the learned counsel for the second respondent in D. VENKATA KRISHNA RAO’s case (8 supra) held at para 45 as follows:
“45. Sections 6, 7 and 83 are adjudicatory provisions applicable in the event of dispute regarding wakfs. As we will be adverting to them when we consider the relevant point, we may briefly indicate the purport of these Sections of the Wakf Act. A plain reading of Sections 6, 7 and 83(2) leaves no doubt that the question whether a particular property specified as wakf property in the list of wakfs, a wakf property or not, has to be adjudicated by the Wakf Tribunal in a suit instituted for the purpose. The question whether a property is a wakf property and whether the notification issued by the Wakf Board is final in relation to such property is always a mixed question of fact and law, and the notification can only be sustained subject to the finding of the Wakf Tribunal that such property has characteristics of wakf.”
Similarly, reliance placed by the learned counsel for the second respondent on a Division Bench decision of this Court in ALLAUDDIN CHARITIES AND ZAKATH WAKF’s case (9 supra) held at para 26, quoting the decision in JAI BHARAT CO-OPERATIVE HOUSING SOCIETY LTD. v. A.P. STATE WAKF BOARD [2000 (5) ALD 743], as follows:
“26. In JAI BHARAT CO-OPERATIVE HOUSING SOCIETY LTD. v.
A.P. STATE WAKF BOARD, HYDERABAD 2000(5)ALD743, a learned single Judge of this Court held:
Reading Sections 7, 84 and 85 together it leaves no doubt that whenever there is a dispute with regard to certain property as to whether it is wakf property or not the only forum which can decide it is the Tribunal created under the Wakf Act, 1995. The judgments of this Court in.
T. Shiavalingam v. A.P. Wakf Tribunal (1999 (3) ALD 646 = 1999 (3) ALT 603; M. Bikshapathi v. Government of A.P., 1999 (6) ALD 270 are also laying down the same principle.”
Para 29 of the aforesaid decision, which is extracted below, is also relied upon by the learned counsel to show that a Writ of Prohibition ought not to be issued restraining the Tribunal from discharging its statutory duty.
“29. A writ of prohibition can be issued only when three conditions are satisfied, namely, 1) that the authority against whom it is sought is about to exercise judicial or quasi judicial power, 2) that the exercise of such power is unauthorised by law and 3) that it will result in injury for which no other adequate remedy exists. It is provided for an extraordinary remedy and can be issued only in cases of extreme necessity. Before such writ is issued, the Court must arrive at a finding that the party aggrieved had applied in vain to the inferior Tribunal for relief. It is also trite that a writ of prohibition is not to be claimed as a matter of right but the same is granted to do justice and the same must be based on sound judicial discretion depending upon the facts and circumstances of each case. In U.P. SALES TAX SERVICE ASSOCIATION v. TAXATIOBN BAR ASSOCIATION, (1995) 5 SCC 716, the apex Court observed that a writ or order of prohibition cannot be issued prohibiting a quasi-judicial or statutory authority from discharging its statutory functions or transferring those functions to another jurisdiction. Exercise of such power, the Supreme Court held, generates its rippling effect on the subordinate judiciary and statutory functionaries.”
20. As discussed in the paras above, it is evident that neither notification of property as a Wakf in the A.P. Gazette nor the registration of the wakf institution under the provisions of the Act, would affect a wakf otherwise created and consequently, the applicability of the Act to such institution is not affected in any manner. It cannot, therefore, be said that the Tribunal had no jurisdiction to entertain O.S.No.45 of 2013 filed by the second respondent. Hence, a Writ of Prohibition to that extent sought for by the petitioner cannot be granted. Since the jurisdiction issue and applicability of the Act with regard to second respondent institution is answered against the petitioner, a Writ of Certiorari, as sought for, against the order of the Tribunal in I.A.No.479 of 2013 in O.S.No.45 of 2013 dated 10.04.2013 is also liable to be rejected and is accordingly rejected. Petitioner is, however, at liberty to participate in the said proceedings before the Tribunal and contest the said suit on merits and defend itself in accordance with law.
The writ petition is accordingly dismissed. As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J April 28, 2014 DSK
[1] AIR 1955 SC 233
[2] (2013) 11 SCALE 210
[3] (1979) 2 SCC 468
[4] (2010) 8 SCC 726
[5] AIR 1985 AP 127
[6] AIR 1986 KARNATAKA 12
[7] AIR 1998 SC 972
[8] 2012 (4) ALD 144
[9] 2002 (1) ALD 67
[10] AIR 1985 AP 127
[11] 2011 (1) ALD 61 (SC)