M. NAZEER PASHA Vs. JOINT COLLECTOR

JUDGEMENT

(1.) Petitioner questions A.P. Gazette Notification No. 28-A, dtd. 13/7/2006 which included land in Survey Nos.95, 96, 97 and 98 at Sangala Village, Gadwal Mandal, Mahabubnagar District as waqf property, as illegal. Consequently, a direction is sought to the 1st respondent to dispose of the pending Appeal in File No. F2/IA-35/2010 filed by the 4th respondent against grant of Occupancy Rights Certificate (ORC) granted by the 2nd respondent in respect of the above land in favour of petitioner and his family members without being influenced by the Gazette Notification.

(2.) Petitioner and his brothers claim to be the absolute owners of the subject agriculture land. The land's historical classification as Kyrathi Inam is documented in Khasra Pahani 1954-55 and Sethwar 1334 Fasli. Gadwal Samasthan initially settled the land in favour of Abdul Khader, with subsequent sale to Pasha's family in 1994. In response to the nature of the land governed by the AP(TA) Abolition of Inams Act, 1955, Pasha and his family approached the 2nd respondent for an ORC. It is stated that the 2nd respondent, after thorough inquiry and local inspection, on 19/2/2009 in file No. B / 5795 / 2000 granted ORC in favour of petitioner and his family members and the same was implemented in Revenue Records by recording their names as pattadars and possessors. While so, the 4th respondent claiming to be Muthawalli of Dargah, filed an Appeal under Sec. 24(1) of the Abolition of Inams Act, 1955. Relying on Gazette Notification No. 28-A dtd. 13/7/2006, the 3rd respondent notified the land as Waqf Property. The 4th respondent seeks to annul the ORC based on this Notification. It is further stated that no enquiry was conducted by any authority as required under Ss. 4(3) and 5(2) to include the above land in the list of Waqf. It is asserted that the notification is illegal, against natural justice and contravenes the 1954 and the 1955 Act. Reference is made to legal precedents (W.P. No. 681/1997), indicating that notifications issued without due procedure were deemed illegal by the Hon'ble High Court. The Division Bench in Writ Appeal No. 745 of 2002 upheld the Single Judge's order. The Hon'ble Supreme Court dismissed the SLP against the Division Bench's judgment dtd. 21/3/2011.

(3.) One Syed Yaqoob Mohiuddin, who claims to be the Muthawalli of Dargah HZT Syed Shah Maroof Peer Quadri (RH) and its attached property situated at Sangal Village, Gadwal Mandal, Mahabubnagar District filed I.A.No. 1 of 2022 to implead himself as the 5th respondent to the Writ Petition. It is stated therein that himself and his brothers are absolute owners of the land in an extent of Acs.27.09 guntas in subject survey numbers at Sangala Village, Gadwal Mandal, Mahabubnagar District. Originally, the nature of the above land is being recorded as Kyrathi Inam in Khasra Pahani 1954-55 and also as per Sethwar 1334 Fasli. The Village Sangala is a Jagir Village under the Gadwal Samasthan and the said Samsthan have settled the above land in favour of one Abdul Khader as Inam land. After death of Abdul Khader, his grandsons namely Syed Abdul Haq Auadri and Abdul Kareem Quadri sold the said Inam land to petitioner and his family members in 1994. It is stated that Munthakab No.70 of 1953 in file No.H/4518/A of RDO, Gadwal, lands bearing Survey Nos.1011, 1035, 1039 of Gadwal Village and present subject lands bearing Survey Nos. 95, 96, 97 and 98 of Sangala Village were permanently endowed in favour of Dargh Hzt. Syed Shah Maroof peer Quadri Rh. At Gadwal and in the said Munthakab it is clearly mentioned that the said lands are conditional Inam. As per Sethwar 1334 Fasli (1940 AD), subject lands are already mutated in the name of Maroof peer sahib (i.e. Dargah Hzt. Maroof peer Quadri) vide No.B/8176/61 of Tahsil Gadwal. These documents clearly shows that the subject lands having been endowed to Dargah, well prior to preparation of Khasra Pahani 1954-55 and recorded as such in government record as per Khasra Pahani 1954-55, the subject land are declared as Waqf properties by the Commissioner of Waqfs appointed by the State Government under the provisions of Waqf Act. The same is notified as Waqf published in A.P. Gazette No.28-A, dtd. 13/7/2006, at Sl. No. 26030 Gadwal Taluk. It is a fact that Dargah Maroof peer is a Waqf institution and subject lands are endowed to the said Waqf institution and as per Sec. 51 of the Waqf Act, 1995, alienation of waqf property is totally prohibited and it alienating by way of gift, sale exchange or mortgage are void and void ab-initio. It is stated that the 4th respondent Mr. Syed Khaja Wajiuddin Chisti expired on 30/5/2019 and prior to his death, he had given NOC for appointment of the proposed respondent as Muthawalli of said Dargah, accordingly, he was appointed as such to Dargah Maroof peer (Rh) and its attached property total admeasuring Acs.39.10 guntas in Survey Nos. 1011, 1038, 1039 admeasuring Acs.12.01 guntas and Survey Nos. 95 to 98 admeasuring Acs.27-09 guntas, total admeasuring Acs.39.10 guntas at Sangal Village, Gadwal Mandal, Mahabubnagar District. Therefore, the proposed respondent is a necessary party to this Writ Petition. It is further stated that this party filed Petition before the 2nd respondent Collector to implead himself to prosecute the Appeal. It is the case of this proposed party that in 19541955 Kasra and even prior to the same, his ancestral names have been recorded as owners of the land as reflected in Kasra Pahani from 1954-1955 onwards as Kidmat Inam. Thereupon after being in possession continuously for more than six decades for land admeasuring Acs.39.10 guntas at Sangal Village, the said land was notified as Waqf vide Gazette Notification No.28-A, dtd. 13/7/2006. It is stated that the Inspector Auditor Waqfs, Mahabubnagar filed Form-I declaration dtd. 21/2/2004 before the Revenue Divisional Officer, Gadwal enclosing the Waqf record of the above Wakf Institution for issuance of ORC in the name of Dargah Hzt. Maroof Peer and its attached Inam lands bearing Survey Nos. 1011, 1038, 1039 Gadwal and 95 to 98 total admeasuring Acs. 39.10 guntas situated at Sangal Village in the light of Inam Abolition of Amendment Act and also the 3rd respondent i.e. Chief Executive Officer, A.P. State Waqf Board, Hyderabad also addressed letters to the Revenue Divisional Officer, Gadwal with a request to issue ORC in the name of Waqf Institution. It is stated that the Revenue Divisional Officer, Gadwal issued ORC in favour of petitioner and his deceased brother M. Maqbool Pasha who expired on 6/1/2001 i.e., (much prior to grant of ORC) without issuing any notice to the 3rd respondent Waqf Board or the 4th respondent who was the then Muthawalli. It is further submitted that Notification declaring the land in Survey Nos. 1011, 1038, 1039 admeasuring Acs.12.01 guntas and Survey Nos. 95 to 98 admeasuring Acs.27.09 guntas, total admeasuring Acs.39.10 guntas at Sangal Village vide A.P. Gazette No.28-A dtd. 13/7/2006 Serial Number 26030 Gadwal (Tq), is prior to grant of ORC to petitioner and his deceased brother which was on 2009 and it was incumbent on the Tahsildar who granted ORC to notify the Waqf and Muthawalli regarding the proposed grant of ORC to petitioner and his deceased brother and not doing so constituted violation of natural justice. This coupled with the fact that ORC was given to Petitioner and his deceased brother made the grant of ORC illegal and liable to be set aside. It is stated that the 4th respondent made all the above said submissions in Appeal before the 2nd respondent Collector for cancellation of petitioner ORC and the said 2nd respondent granted stay of operation of the ORC which order is still in operation. Petitioner in the present Writ Petition in an effort to get over the proceeding before the Collector and avoid appearing before the said Collector in the Appeal, filed the present Writ Petition for setting aside Gazette Notification and obtained stay of appeal with sole object of avoiding appearance in the Appeal. The ground taken in Writ Petition which was without any basis that the Gazette notification itself be cancelled and on that baseless ground itself, stay was obtained on the Appeal pending before the Collector which a separate proceeding and which has nothing to do with the validity of the Waqf notification. It is further stated that obtaining ORC before the Tahsildar was fraudulent as notices were not given either to the Waqf or Muthawalli. In spite of the fact that Gazette Notification (2006) is prior to grant of ORC (2009). It is stated further that proceeding before the Collector challenging the ORC is a separate and distinct proceeding and already resulted in grant of a stay against the operation of the ORC. Petitioner in effort to subvert that proceeding filed the present writ petition with sole object of stalling appeal proceeding before the 2nd respondent Collector on baseless ground of challenge to Gazette notification notifying the said property as a Waqf. Not only Gazette is prior to Petitioner ORC in the present writ petition, the said challenge is without any basis and done to only stop proceeding before the Collectrate. A challenge to Waqf notification published in the Gazette itself may not result in suspension of any proceedings before the Revenue Authorities concerning the grant of ORC etc. to the 3rd party. If that were so, any 3rd party can file a writ petition challenging the Gazette Notification declaring the property as Waqf and then seek for suspension of all pending proceedings before the Revenue Authority concerning the said land. Therefore, stay itself may be vacated. It is further stated that one person, who was the beneficiary of ORC along with petitioner, expired on 6/1/2001 i.e., M. Maqbool Pasha, even before grant of ORC which was on 19/2/2009. Hence, prima facie the very grant of ORC was fraudulent and deserves to be set aside. At any rate, the stay had been granted which has resulted in suspension of a pending proceeding before the 2nd respondent Collector Revenue Authority for the past eight years. The same may not be stalled merely because there is challenge to a Waqf notification. It is submitted that petitioner cited Writ Appeal No. 745 of 2002 and Writ Petition No.12275 of 1993 which is wholly inapplicable to the facts of the present case. In Writ Appeal, this Court held that when ORC precedes the date of declaration of Waqf under Gazette, in such case, the occupancy right holders have to necessarily be given notices before declaration of said property as Waqf property and not doing so violates principles of natural justice. In the instant case, as stated hereinabove, declaration of above said property as Waqf property vide Gazette Notification took place vide A.P. Gazette No. 28-A dtd. 13/7/2006, at Sl. No.26030 Gadwal Taluk, whereas the ORC vide File No. B/5795/2000 dtd. 19/2/2009 was after declaration of property as Waqf property. Hence, as per the facts of the present case, declaration of property as Waqf property preceded grant of ORC by three years and hence, the ratio of the decision of this Hon'ble Court in Writ Appeal and Writ Petition No. 12275 of 1993 are wholly inapplicable to the facts of the present case since in those cases, grant of ORC preceded that of declaration of property. It is finally stated that by virtue of stay granted in 2013, Petitioner is interfering with possession of the proposed respondent at the above said Dargah/Waqf land who is Muthawalli appointed to the said Dargah from exercising any rights over the said land and this is resulting in constant friction between petitioner and proposed party. Hence, said stay petition may be vacated. Further, petitioner illegally and fraudulently sought to sell the said lands and done so to certain third parties in an extent of Acs.08.00 in Survey No.No.95 of Sangal Village. Having come to the notice of the 2nd respondent who has informed the Tahsildar that stay having been granted in the said Appeal against ORC, any sale having taken place thereafter is illegal and invalid and directed the Tahsildar to take immediate action with regard to the same.