State Of A.P. vs A.P.State Wakf Board .

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10770 OF 2016

STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) .....APPELLANT(S)

VERSUS

A.P. STATE WAKF BOARD & ORS. .....RESPONDENT(S)

WITH

CIVIL APPEAL NO. 10738 OF 2016

CIVIL APPEAL NO. 10768 OF 2016

CIVIL APPEAL NO. 10769 OF 2016

CIVIL APPEAL NO. 10773 OF 2016

CIVIL APPEAL NO. 10775 OF 2016

CIVIL APPEAL NOS. 10776-10777 OF 2016

CIVIL APPEAL NO. 10771 OF 2016

CIVIL APPEAL NO. 10772 OF 2016

AND

CIVIL APPEAL NO. 10774 OF 2016

Signature Not Verified

Digitally signed by Jayant Kumar Arora

JUDGMENT

Date: 2022.02.07 13:43:58 IST Reason:

HEMANT GUPTA, J.

1 CIVIL APPEAL NOS. 10770 OF 2016, 10738 OF 2016, 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 3.4.2012 1

whereby the writ petitions challenging the Errata Notification

dated 13.3.2006, 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 HYDERABAD, THURSDAY, APRIL 6, 2006

Part-I Notifications by Government Heads of Departments And other Officers

CONTENTS

xx xx xx

ERRATA NOTIFICATION OF DARGAH NZT HUSSAIN SHAH VALI, MANIKONDA (V), RAJENDARANAGAR (M), R.R. DISTRICT

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.

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, 187, 188

1 2012 SCC On Line AP 704 2 For Short “Wakf Board” 2 (11) Extent Dry --- 189, 190, 191, 192, 193, 194, 195 (12) Extent Wet - 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 231, 232, 233, 234, 235, 236, 237, 240, 241, 242, 244, 246, 247, 249, 250, 251, 252, 254, 256, 256, 257, 248, 258, 259, 260, 263, 264, 265 and 266 of Manikonda (V) Rajendranagar (M) RR District attached to D. Hazrath Hussain Shah Vali (11) Total Extent Ac:- 1654.32 Gts

Hyderabad (Sd/-) 13-3-2006 Chief Executive Officer”

2. The above Errata notification was challenged by the then State

of Andhra Pradesh, now State of Telangana 3 and the Andhra

Pradesh (now Telangana) Infrastructure Development

Corporation4 by filing Writ Petition No. 23578 of 2007 before the

High Court. Civil Appeal No. 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 by

a university to whom the State had transferred 200 acres of

land situated in the village Manikonda on 18.3.1998 for the

3 For short, “the State” 4 For Short, “the Corporation” 3 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 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 Hills Technology Park Pvt. Ltd and Civil

Appeal No. 10768 of 2016 arises out of the said Writ Petition.

Civil Appeal No. 10768 of 2016 and Civil Appeal No. 10775 of

2016 have been filed 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 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 pending consideration.

The Dargah had challenged the alienations made by the

5 For Short, the “Wakf Tribunal” 6 For Short, the “Dargah” 4 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 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 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 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 vest with the Military Governor and that

said authority included the authority to make Regulations as

7 For Short, the ‘Sovereign’ 8 Also Firman - the “Royal order” 5 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 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 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 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 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 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 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, 6 vested in the Military Governor before the said date are exercisable by the Chief Minister.”

7. The Military Governor in exercise of authority vested on him 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 15 th Mehir 1358 Fasli, i.e.,

15.8.1949 AD. Later, the Chief Minister 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 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 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.

9 For Short, the ‘Abolition Regulation’ 10 For Short, the ‘Commutation Regulation’ 7

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 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 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 of this Court in a judgment reported as Sarwanlal v.

State of Hyderabad (Now Andhra Pradesh) & Ors. 11,

wherein this Court held as under:

“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 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 Exalted

11 AIR 1960 SC 862 8 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 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 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 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 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 of complying with the restrictions, in enacting a statute, to evade 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 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 9 the Commutation Regulation 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

from any challenge on the ground that they are inconsistent

with or violative of Part III of the Constitution. Thus, the Aboli-

tion 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

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

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 another firman he made it clear that the authority delegated to the Military Governor included and shall always be

12 AIR 1962 SC 996 10 deemed to have included authority to make Regulations.

This latter firman was 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 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 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 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, 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.”

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, Jagirdars and the Jagir Abolition Regulation.

13. The Hyderabad State was facing heat by insurgents on one

11 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 east of Hyderabad State. The Sovereign

appointed a Royal Commission under the chairmanship of Sir

Albion Rajkumar Banerji sometime in 1945 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; 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 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 (Ghair Mustasna). A Mustasna jagir was exempted from

the Diwani jurisdiction. The power to declare a jagir as an 13 A grant, stipend, or an allowance.

12 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

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

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 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

department continued to discharge its respective 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

13 procedure. Subsequently Circular No. 10 of 1338 F (1928) 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 Collector-I and Ors.15. The High Court

noted 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 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 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 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

14 Source- AIR 1956 SC 319 15 (2018) 6 ALT 79 (DB) 14 Government headed by Mr. M.K. Vellodi and an Act known as Hyderabad Tenancy and Agricultural 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…………….”

15. The Abolition Regulation came into force on 15.8.1949 when 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 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 statute as part of agrarian reforms

read thus:

“THE A.P. (T.A.) (ABOLITION OF JAGIRS) REGULATION, 1358 F. No. LXIX of 1358 F

PART – I PRELIMINARY

xxx xxx xxx

(f) Jagir” includes a Paigah, Samasthan part of a jagir, village Muktham village Agrahar, Umli and Mukasa whether granted by a Ruler or a Jagirdar, and, as respects the period commencing on the date appointed for a Jagir under Section 5, means the estate therefore

15 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 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 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 recognised as, a Jagirdar whether in succession to a deceased Jagirdar or otherwise.

PART – II TRANSFER OF ADMINISTRATION AND THE CONSEQUENCES THEREOF

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.

(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 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-

(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;

16 PART – IV MISCELLANEOUS

xxx xxx xxx

16. Special provision for Jagirs granted to temples, etc:

- The 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 Government shall, notwithstanding anything contained in Section 8, be such percentage not exceeding ten as the 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 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 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.

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, to any jagir granted-

17 (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 any religious or charitable institution.

(2) The Government shall pay to the institution every year commencing from the 1st 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 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.

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 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 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, 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 was to be transferred to a Jagir Administrator who had 18 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 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 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.

C. The Andhra Pradesh (Telangana Area) Atiyat Enquiries 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 (Amend-

ment) Act, 1956 (Act No. XXVIII of 1956). Such amending Act

was published on 5th September 1956. The title of the Act now

stands as The Andhra Pradesh (Telangana Area) Atiyat Enquiries

16 For Short, the “Enquiries Act” 19 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-

(a) “Atiyat Court” means a Court or authority compe-

tent to make Atiyat enquiries and enquiries as to claims to succession to and any right, title or in- terest in Atiyat grants and matters ancillary thereto;

*[(b) “Atiyat grants” mean-

(i) in the case of jagirs abolished under [the Telan-

gana (Abolition of Jagirs) Regulation, 1358F.] the commutation sums payable in respect thereof un- der [the Telangana Jagirs (Commutation) Regula- tion, 1359 F.];

(ii) inams to which [the Telangana Abolition of Inams Act, 1954] is not applicable;

(iii) in the case of inams abolished under [the Telan-

gana Abolition of Inams Act, 1954] the compensa-

tion payable under that Act;]

xxx xxx xxx

(c) “Muntakhabs and Vasiqas” means documents is-

sued 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 continuance or con- firmation 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;

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 In- ams Act, 1954], continue to 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.

20

3. *[Continuance of Atiyat grants:- All Atiyat grants shall, subject to the provisions of the Andhra Pradesh (Telangana Area) (Abolition of Jagirs) Reg- ulation, 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 thereto and to the provisions of this 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 any- thing contained in [the Telangana (Abolition of Ja- girs) 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 suc- cession arising in respect of such grants:

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) 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 inter- est therein and matters ancillary thereto shall be held in Atiyat Courts in accordance with the provi-

sions of this Act.]

xxx xxx xxx

Constitution of Atiyat Courts, their jurisdic- tion and procedure.

12. *[(1)] In so far as questions of succession, legiti-

macy, 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 estab- lished under this Act on the decision 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 de- cision of the Civil Court.

21 [(2) If in the course of any Enquiry as to claims to succession, any dispute arises involving ques- tions 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 fi- nal decision of the Civil Court, the Atiyat Court shall give effect to such decision.]

xxx xxx xxx

*[16. The provisions of this Act, shall cease to be appli-

cable-

(a) to an Atiyat grant specified in sub-clause (i) of clause (b) of sub-section (1) of section 2 when the commutation 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 (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].

* 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 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

17 AIR 1956 SC 319 22 with the provisions of Section 6. The share of Jagirdar or

Hissedar after his 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 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.

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 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 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 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)).

It was also provided after the commencement of the 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

23 original Jagir tenure as such was abolished and under this Regulation a hereditary but inalienable personal right to receive a portion of the net 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

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 (Act No. VIII of 1955)

CHAPTER I Preliminary

xxx xxx xxx

(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 and entered as such in the village records and includes-

(i) arazi makhta, arazi agrahar and seri inam;

and

(ii) lands held as inam by virtue of long possession and entered as inam in the village records:

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 Inams Abolition Act” 24

(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;

(ii) where an inamdar is a Joint Hindu family, such Joint Hindu family;

CHAPTER II Abolition and vesting of inams and 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 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.

*[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 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 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

(3) Nothing contained in sub-sections (1) and (2) shall operate 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

25 sum shall be recoverable by him by any process of law, which, but for this Act, would be available to him.

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 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- 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, 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 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:-

(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.

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

26 permanent dedication of property with implied detention in the

ownership of God in 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 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 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 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 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 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.)

The property whether movable or immovable must

27 belong 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 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 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

of Wakf property prior to enactment of The Wakf Act, 1954 19 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 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 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:-

19 For Short “the 1954 Act” 20 Endowment Regulations 28

1. These regulations will be known as “Endowment Regulations” and will come into force throughout the dominions of H.E.H. from the date of publication in the Gazette (Jarida Alamia).

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 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 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 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.

Kitab Maash hai 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 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

29 regard to them.

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 Institution connected with the conditional grants (Mash) will he regarded as endowed and proceedings will be adopted in 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 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 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, 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:

(l) “wakf” means the permanent dedication by a person professing Islam [or any other person] of any movable

30 or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes—

(i) a wakf by user;

(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;…”

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.

30. The 1954 Act was later repealed by the Wakf Act, 1995 21 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:

“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 106;

xx xx xx

(g) “list of wakfs” means the list of wakfs published under sub-section (2) of section 5;

xx xx xx 21 For Short “1995 Act” 31

(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

(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 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—

(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 mashrat-ul-khidmat for any purpose 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,

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 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.

32 (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:—

(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 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 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.

(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.

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 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:

33

Provided that in exercising its powers under this Act in respect 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 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—

xx xx xx

(h) to take measures for the recovery of lost properties of any wakf;

xx xx xx

(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;

xx xx xx

40. Decision if a property is wakf property. – (1) The Board 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.

(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

34 (4) xxx xxx

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 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, 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

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 a maash land. Nizam Atiyat

decided 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:

“Order

The arguments of the parties and the Government Pleader were heard on 9th April, 1957.

22 Also Mash - “the property or the grant” 35 The plaint of Akbar Husaini filed on 9 th Amardad, 1336 F claims confirmation of the following mashes as service maash of Dargah of Hazrat Husain Shah Wali:-

1. Gontapalli Village

2. Manikonda Village

3. Rayadurg Village (half) Known as Maoza Dargah Shareef

4. Makhta and Arazi Inam Shekhpet village Survey Nos. 320, 324 acres, 3 guntas

5. Arazi Inam (Khankash in Qila Mohammad-

nagar 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 maash.

In view of the facts of the case and the plead- ings of parties the following issues require a deci- sion:-

1. Is the grant of jagirs and other maash cov-

ered by valid sanads and can these be con-

firmed as Mashrutul khidmat maash in the name of the present claimant (incidentally, it will have to be examined how far the con-

tention of the Hzardars in respect of the na- ture of the maash, being zar-khareed is ten- able).

2. Possession and enjoyment of the claimants over the maash.

3. The relationship of the present claimants and objection petitioners to the original grantee.

4. The relief to which the respective parties are entitled.

ISSUE NO.1: Jagir villages

(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.

# 1. Copy of Ehkam of Nawab Mukhtarul-Mulk dated 1249.

36

2. Letter of H.S. No. 75 dated 14 th Azur, 1308F.

3. Letter of Daftar-e-Mal 2 of 13th Azur, 1320F, in verification of the No.1.

4. Ehkam of Nawab Mukhtarul-Mulk dated 16th 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 Inam Statement was prepared by the First Taluqdar on 19 th Amardad, 1320 Fasli for sanction of higher authorities. But on ac- count 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 Manikonda was recom- mended to be confirmed as a Mashrutul-khidmat ja- gir for services to the Dargah in the name of the Saj- jada 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 nature of maash namely whether it was granted as a Mashrut maash or was a zar-kha- reed property.

xxx xxx xxx

……… The Ahkam dated 16th Babul-Awal, 1275 H in respect of the grant of Gontapalli jagir clearly mentions Manikonda Jagir as conditional on Ood-u- Gul24. Hence there is no strength in the contention that the Jagir Manikonda was self-acquired property 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 condi- tional Atiya Shahi Grant and treated as such by com- petent Atiyat authorities of the time. Hence, I enter- tain no doubt as to the nature of the Jagir Manikonda being a Mashrut atiya shahi grant for the service of Dargah of Husain Shah Wali. The kaifiat jagirdaran mentions this village as conditional jagir. The Firman of the Nizam dated 14th Azur, 1378 Fasli and 1st

23 “Sarfe Khas- private property of Sovereign” 24 Incense and flowers 37 Ramzan, 33 H also confirmed this jagir as a condi-

tional jagir for the service of Dargah.

The fact that the jagirs were mortgaged to Hasan Bin Mohsin on 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

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 estab- lished from records since a long time. The jagir vil- lages and other properties have also been the sub- ject of prolonged litigation between the qabiz and hissedars in the civil and Atiyat Courts, ever since the of Mukhtarulmulk Bahadur. In 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 Ak- bar Husaini and thereafter it was under C.W. 26 until it was released from the C.W. only in 1956 through let- ter No. 545 dated 29-5-56. Hence the maash is con- firmed as follows:

1. Villages Manikonda and Guntapally with all items of Revenue inclusive of Excise as con- ditional on service to Dargah.

2. xxx xxx xxx.

Issue No.3 :- The Shijra or family tree as filed by the parties in the case and given in the summary of the case above is admitted by all parties. Their respec- tive shares in the 1/3rd Biradari portion Mashrut-ul- Khidmat maash viz., jagir village of Guntapally and Manikonda shall be worked out separately and form part of the 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 enti- tled 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 be entitled to 2/3rd 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 commuta-

25 Minister 26 Court of Wards 38 tion Regulation 1358 F and the Abolition of Inams Act 1954.

(Emphasis supplied) 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

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:-

1. Manikonda village | situated in Hyd.

2. Darghah Sharif village | west Taluk

3. Inam lands at Shaikhpet and at Mohd. nagar fort.

4. Patta lands at illegible village of Bidar Taluk.

5. Patta lands at illegible village of Kalab- gore Taluk.

6. Makta illegible (Raidrug village) Hyd.

West Taluk.

The village No.1 and 2 have been handed over to the Government due to the abolition of Ja- girs. As commutation of the said Jagirs, Jagir Ad- ministration’s Office was sending amounts to the extent of the share of the dependents of the es- tate to this office and the rest to the Muslim Waqf Board, towards the service expenses of Darghah known as Hussain shah Wali.

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.

3. Fati funnia Begum mother of No.2.

4. Fatima Bi mother of No.1.

5. Mahoob Sahed Bi daughter of No.2

39 No.2 and 3 have migrated to Pakistan.

Apart from the above persons, the other depen- dents were paid their Guzara from the income of the estate.

The properties were meant for the service of the Darghah Hussain Shal Wali and the mainte- nance of the late Sajjad’s family and the other de- pendents. The affairs of the Darghah are being 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 ser- vice Inam or not.

The patta lands can be deemed as personal properties of 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.

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 re- leased in favour of Syed Safiullah Hussaini and the maintenance of his mother, niece and others will be a charge on him.

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 of this notification.”

33. This order of Nazim Atiyat was given effect to when 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 as a conditional

grant to Dargah whereas Mukhta land situated in village

27 Document in the nature of decree 40 Raidurg and inam land situated in Shaikpet was described as

Madad Mash28. The final order mentioned in Column 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 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 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 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. Sd/- 25-11-1358F”

34. The Nazim Atiyat dismissed 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 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:

28 Grant in Aid 41 “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 the Nazim Atiyat has held that they are zarkhareed maktha lands constituting madad mash.”

ii) Facts leading to the impugned Notification

35. A Survey Commissioner was appointed to conduct an inquiry 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:

“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.”

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 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:

42

Serial Name of Name Area Name of Numbe Taluk or and Mutawalli r village or situation Ward of Wakf Sunni or Shia 3057, Hyderaba 1.Dargah 1. 3165 sq. Syed 3058 & d West, Hazrath Yds. Safiullah 3059 Taluk, Jussain 2. 1222 Hussaini Dargah Shah Sq. Yds Hussain Wali 3. 1069.5 Shah Wali 2. Sq. Yds. (V) Khanqa With (S) (262, Mosque 261 & and well. 260/1) 3. House on the North side of Khanqah Area

37. A perusal of the documents filed by the Wakf Board before 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

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 Mandal consisting of Darga, Khankha, Mosque, House notified in A.P. Gazette No. 6-A, dt. 9 th 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

43 and devotees.

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 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 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 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 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.

44

39. Such documents filed by the Wakf Board before this Court

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: -

“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 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 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.

Yours faithfully, Sd/- xxxxxx Chief Executive Officer”

40. The second survey report was accordingly sent to the Wakf

Board on 30.9.2005. The office noting which led to the issuance

of Errata 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 45 Khasrapahani for the Year 1954-55 in respect of the land relating to D. Hzt. Hussain Shah Vali situated in Manikonda(V) and submitted his report along with 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 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 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.

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/- EO 10.10.05 CEO 12.10

xx xx xx

Submitted – It is submitted that the Sy. Commissioner of Wakf, AP, Hyd. submitted his 2 nd survey report in respect to the subject 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.

Submitted for orders. Sd/- EO. 7.11.05 46

In the earlier publications, the S.Nos. and area attached to the Institution have not been notified in the Gazette. As per 2nd survey 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/-

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.

For Orders.

Sd/-

C E O 10.12

xx xx xx

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.

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 From To The Chief Executive Officer The Commissioner, A.P. State Wakf Board Govt. Printing Press, Hyderabad Chanchalguda Hyderabad.

Sir,

Sub: Wakfs-RR Dist.-Rajendranagar (m) Manikonda (v) Dargah Hazrat Hussain Shah Vali-Eraata to the earlier Gazette Notification-Published-Req-Reg.

47 Ref.: Gazette Notification No 6-A, Dated 9-2-1989 at page no 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 to this Office.

Kindly intimate the publication charges immediately for payment.

Encls:- Errata to notification.

Yours faithfully,

CHIEF EXECUTIVE OFFICER 13.3.”

41. It was thereafter that the impugned Errata notification was

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 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)

48 dt. 4.2.02, the entire 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

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 persons is in

the same handwriting as response to Column No. 1 to 10.

43. The overwriting and additions show that total extent of 1654

acres and 32 guntas is 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 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 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 49 said Regulation. As per Government Order No.1 dated

03.10.1949, all jagir villages have been taken over by the

Diwani (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 State

over the 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 and even the signatures of

Mandal Revenue Officer, Serilingampally and Mandal Revenue

Inspector were forged as per their statements. It 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 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

50 grant, produced by learned counsel for the Dargah reads thus:

“Farman of Nizam 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 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 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 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/-

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 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

commutation amount under the Commutation Regulation was

paid to the legal heirs vide Muntakhab order No.98 of 1958 . The

51 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 was specifically

excluded from the purview of the Endowment Regulations. The

Sovereign continued to possess the land as title holder but only

the usufruct could be 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-Khidmat as part of wakf in 1954 Act or

1995 Act would not apply to the 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 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 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

52 that Manikonda and Guntapalli jagir villages were allotted to

Dargah for rendering services to the institution. Thus, Errata

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 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. 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

Survey Commissioner was not treated as a survey report, it was

merely an information provided by the Survey Commissioner.

The Board has 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 53 details, cannot be ignored on the ground of procedure not being followed especially when that procedural step complained about is merely that the 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 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:-

“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 1 st 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 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 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.”

51. It was also averred that the concept of Mashrut-ul-Khidmat has

54 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.

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-Khidmat in 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-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 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

wrongly described as Government land. The Corporation issued

an advertisement on 22.9.2004 inviting bids of private

55 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 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.

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 been for rendering

service, even after the death of grantee, 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 were filed on behalf of alleged pattedars

whereas Writ Petition No. 4515 of 2008 was filed by an allotee

of land from the Corporation. The High Court examined the

three following questions:

56

“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?

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 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:

“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 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 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, 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, the dedication is made for the purpose recognized by Muslim law as, pious, charitable or religious.

(5) Service inam granted to individuals burdened with 57 service, for the purposes which are pious, religious or charitable, answers, description of all the ingredients of wakf.

(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, 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 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:

“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 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 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 every year commencing from 1st April, 1950 for the service of the institutioa Prima facie, none of these provisions help the Advocate General in sustaining the argument that on payment of commutation, Mashrut-ul-khidmat stands reversed and vests in the sovereign/Government. That 58 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. 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 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 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 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 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 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 59 inclined to go deeper into these issues. The following reasons

were recorded:

“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 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 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.”

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:

“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 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. Even if a Wakf is not surveyed or mentioned in 60 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-abstante clause. This overrides other provisions in the Wakf Act 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.”

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 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 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 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 61 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.”

63. The aforementioned findings recorded by the High Court are

subject matter of challenge in the present appeals.

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 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 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

62 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 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 over the property spread over a large 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 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. 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 29 (2006) 10 SCC 696 63 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 as the order of the Nazim Atiyat were

the two factors considered which 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 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 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 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.

30 AIR 1952 Hyd 163 64

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 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 2/3 rd

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

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 v. Jagir

Administrator, Government of Andhra Pradesh and

Others31 to contend that as the Abolition and Commutation

Regulations abolished succession claim in respect of atiyat

grants under Section 2 of the said 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.

31 (1974) 1 SCC 82 65 Ali v. State of A.P. and Others32. The petitioner had

withdrawn the writ petition with permission 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 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 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 override the right of the Sovereign, who is

the repository of all lands within his estate. Hence, the Abolition

and 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

32 (2007) SCC Online AP 765 33 (2018) 11 SCC 277 66 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 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 said

appeal was not validity of the notification or lack of jurisdiction

or procedural impropriety, which has arisen for consideration in

the present appeals.

71. Mr. C.S Vaidyanathan, learned Senior Counsel appearing for 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 India v. Alka

Subhash Gadia (Smt)36. Reference was also made to K.K.

Kochunni v. State of Madras37, Whirlpool Corporation v.

Registrar of Trademarks38 and Balkrishna Ram v. Union of

India39.

72. It was argued that even if there was an alternative remedy 34 (2021) SCC Online SC 1003 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 67 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 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

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 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 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 68 Ahmed Khan40. An inquiry could be conducted only after

hearing the affected parties. Since the decision 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 jurisdic-

tion 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 lim-

ited 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 over a

large chunk of land under the guise of Errata notification. The

Errata notification rather is in pith and substance, a fresh notifi-

cation 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 alter-

natives stand excluded. It was 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 empow-

ers the Wakf Board to investigate and determine the nature and

extent of wakf. The Board is thus competent to investigate and 40 (2010) 9 SCC 496 69 determine the nature of Wakf as a step-in aid for its quasi-judi-

cial decision in terms of Section 40 of the Act. The determina-

tion in Section 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 Wel-

fare41.

75. Mr. Ranjit Kumar, learned Senior Advocate appearing for the M/s

Lanco Hills Technology Park Pvt. Ltd. submitted that irrespective

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 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.

76. It was argued that no inquiry as envisaged under Section 40 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 the 1995 Act that

41 (2002) 5 SCC 685 70 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 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 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 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 Gobindram and Anis Fatima Begum.

71 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

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 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

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 provisions of

Abolition Regulation. As per the order passed by the Nazim

42 (2003) 2 SCC 107 43 (2021) 6 SCALE 78 44 (2020) 2 SCC 442 72 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

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, 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 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 Tri-

bunal relying upon Sections 6, 7, 83, 85 and 88 of the 1995 Act.

The intention of the legislature is evident from the scheme of

the Act. The reference is made to the judgments reported as

Rajasthan Wakf Board v. Devki Nandan Pathak & Ors.;

73 Haryana Wakf Board v. Mahesh Kumar; Board of Wakf,

West Bengal & Anr. v. Anis Fatma Begum & Anr.; Punjab

Wakf Board v. 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 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 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. 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 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.

85. Subsequently, in a writ petition, the High Court in its order

45 (2017) 14 SCC 561; (2014) 16 SCC 45; (2010) 14 SCC 588; (2019) 4 SCC 698; (2021) 9 SCC 179; and 2021 SCC OnLine SC 1003.

46 AIR 1961 SC 744 74 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 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 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

was submitted 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 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 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 47 AIR 1963 SC 985 75 as manager of the wakf. Though mutawalli is the administrator,

governor, superintendent or curator of the 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 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 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 nonperformance of

service and is re-granted to another person, it only means that

the management of the 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 Secretary 48 holding that a 48 1978 SCC OnLine AP 117 76 service inam could be Wakf. Mr. Ahmadi further relied upon

another judgment reported as 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 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

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 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 49 (1998) 2 SCC 642 77 property for religious purpose would clothe the same into the

nature of Wakf within the meaning of the 1954 and 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 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 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 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 Wakf exists in relation to the service

78 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.

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 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 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 order dated December 14, 1961. The State

Government was a party at both stages as it was represented

79 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 allowed to be re-opened or challenged on

the basis of an alleged jurisdictional error. This position is

further buttressed 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 was

not a jagir within the meaning of the Abolition Regulation as the

Jagir in terms of Section 2(f) of the Abolition Regulation does not

include 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 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

80 vesting of the Manikonda Village in the Government. 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

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 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

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

81 and determine the nature and extent of a Wakf property.

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 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 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 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

sub-sections (3) and (4) of Section 40 only. Reliance was placed

50 2011 SCC OnLine Ker 4185 51 (1899) 48 Weekly Reporter 150 82 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 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 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 pari materia provisions contained in Section 27 of

the 1954 Act to Section 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 30 or 40 of the

Act. Mr. Ahmadi has referred to the following material to

conclude that the Manikonda Village was a Wakf property.

“a) The Manikonda village was a service grant for the Dargah.

52 C.O. No. 749 of 2018 decided on 20.2.2019 53 (2001) 8 SCC 528 54 (2017) 13 SCC 174 83

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.

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.

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 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 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

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)

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

84 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 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

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

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

55 (2003) 3 SCC 472 85 in the year 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 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 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 parties out of which allotees have

utilized 818 acres and 9 guntas. Thus, 428 acres and 3 guntas

of land is still lying 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 56 (2016) 3 SCC 422 86 property and to pay 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 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 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 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. The 57 Also Ramadan 87 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 of

the ‘Suls-e-Sulsan’, Saifullah Hussaini as 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. 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. 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

free by the village of its own. Jagir means a grant of land made 88 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 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 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 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 13(2) of the Enquires Act gives finality to

89 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 suc-

ceed, it needs to be proved that the Dargah does not have title

on the land. However, such question cannot be comprehen-

sively determined by a Court exercising writ jurisdiction under

Article 226 of the Constitution because there are 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 Mus-

lim 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 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 ju-

risdiction to deal with the question as to whether the land 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 90 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.

103. It was also argued that the judgment in Whirlpool Corpora-

tion v. Registrar of Trade Marks, Mumbai & Ors. 58 is distin-

guishable as the High Court can decline to exercise its jurisdic-

tion if it is satisfied that an aggrieved party can obtain relief be-

fore an alternative forum. Reference was made to judgment of

this Court reported as Commissioner of Income Tax & Ors.

v. Chhabil Dass Agarwal59. In Whirlpool, the High Court rel-

egated 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.

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 parties

also submitted the written submissions. We find that the

following questions arise for consideration by this Court,

including the questions suggested by Mr. Nakul Dewan:

“(1) Whether the High Court was justified in relegating the parties to the remedy before the Wakf Tribunal?

58 (1998) 8 SCC 1 59 (2014) 1 SCC 603 91 (2) Whether the Government was entitled to dispute the validity of errata notification before the Writ Court under Article 226 of the Constitution?

(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 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 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?

(6) Whether the order of the Atiyat Court deals with the question of succession to receive grants or it is relevant to determine the nature of grant as 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 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 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?”

1. Whether the High Court was justified in relegating the parties to the remedy before the Wakf Tribunal?

105. The High Court in its detailed order has discussed the 92 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 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 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

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. On

perusal of the various documents produced by the parties,

93 the High Court held that it was not 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 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 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

arose for 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.

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 was a case where the

constitutionality of an Act was challenged as violative of Article

94 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 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 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 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 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

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

95 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. & Ors. v. M.R.

Apparao & Anr.60 held that “A judgment of the Court 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 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 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

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 60 (2002) 4 SCC 638 96 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.

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 available with the

appellant. This Court held that it is 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 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.

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

97 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 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 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 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 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 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 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

98

20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the 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.”

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 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

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

Muljibhai Patel v. Nandlal Khodidas Barot and Others61,

held that the High Court is not deprived of its jurisdiction to

61 (1974) 2 SCC 706 99 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 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 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 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 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 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-Judge Bench of this Court after reviewing the case law on this point, noted : (SCC pp. 9-

10, paras 14-15)

62 (2021) 6 SCC 771 100 “……………………………”

27. The principles of law which emerge are that:

27.1. The power under Article 226 of the Constitution to issue 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) 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 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 must be had to that particular statutory remedy before invoking 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. 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 was to the quashing of a notice for assessment under

Section 148 of the Income Tax Act. This Court held as under:

101 “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 India v. T.R. Varma [AIR 1957 SC 882] , State of U.P. v. Mohd. Nooh [AIR 1958 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 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. ………”

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 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.

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

102 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 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 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.

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

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 103 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

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”.

121. Similar view that an authority created by a Statute is state

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.

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:-

“25. Therefore, Mr Chinai was right in contending that every action/activity of the Bombay Port Trust which constituted

63 AIR 1967 SC 1857 64 (2006) 1 SCC 667 65 (1989) 3 SCC 293 104 “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 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 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

(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 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 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”.

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:-

66 (1991) 1 SCC 212 67 (1995) 6 SCC 289 105 “31. It is settled law that every action of the State or an in-

strumentality 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 Constitu- tion. The action must be just, fair and reasonable. Rejection of the 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 dis- crimination 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 statu- tory rule or by administrative discretion, when its actions or orders visit the citizen with civil consequences, fairness and justness require that in an appropriate case, the affected citi- zens must have an opportunity to meet the case. Audi al- teram partem is part of the principles of natural justice………………… “

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 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 Department and Minority Department

should be considered by the 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. 106 Collector of Central Excise68.

127. The Constitution Bench in a judgment reported as Electronics

Corporation of India Limited v. Union of India69 has re-

called 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 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. There-

fore, reliance on the judgment in Chief Conservator of

Forests is not tenable and no such objection 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 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

68 (1995 Supp (4) SCC 541 69 (2011) 3 SCC 404 107 by State Government. Such letters were 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.

(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 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 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.

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

108 Commissioner, Government Printing Press 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.

131. The argument raised that since the Errata 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. 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 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. 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

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 70 1991 SCC On Line Del 784 109 by Private Individuals and Private Bodies. Similar scheme of the

publication in the Gazette would be available in the States 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 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

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 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 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 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 Official Gazette at the

instance of the Wakf Board only for the reason that it has been

110 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.

(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 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

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

contained in Section 32(2)(n) of the 1995 Act.

135. Reliance has been placed upon a judgment of Kerala High Court

111 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 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 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 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 issue interim orders like the one issued in the impugned orders 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 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 for the control, maintenance and administration of the Wakf.”

136. The High Court in the aforementioned case was examining

112 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 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 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 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:

“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 that regard. In view of the summary nature of the proceeding as contemplated in the said section, detailed evidence or 113 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.

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 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 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 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.”

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.

114 139. 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 that since such order

of the Wakf Board is final, subject only to an appeal before the

Wakf Tribunal, it has to be a reasoned and speaking 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 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 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.

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

115 Inquiry, such a requirement of law makes the authority a quasi-judicial authority.”

141. In a Constitution Bench judgment reported as Province of

Bombay v. Khushaldas S. Advani & Ors. 71, this Court de-

duced principles as to when an authority can be said to exer-

cising 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 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:

(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 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 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.”

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

71 AIR 1950 SC 222 72 (1999) 4 SCC 43 116 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 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. 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., 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 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 subsequent cases both in England and in India. Again this Court in Radeshyam Khare 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) 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

117 administrative act is whether 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.

***

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. 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 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 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”.

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 prejudicially.

xxx xxx xxx

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial

118 and quasi-judicial or even 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.”

144. In respect to the provisions of Section 32 of the 1995 Act, a Di-

vision Bench of Kerala High Court in a judgment reported as

Ezhome Sunni Valiya Juma 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 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 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 quasi- judicial function. (See the decision in Puthencode Juma - 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 is subject to some measure of judicial procedure. As regards quasi-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 deal with the same

73 2019 (3) KLT 1064 DB 119 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 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 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 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

120 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 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 inquiry

conducted, it cannot be said to be in accordance with the

procedure prescribed under Section 40 of the 1995 Act.

147. Since there is no determination of the fact 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 1995 Act.

148. 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

and is registered under any of the Acts is absolutely

misconceived. These provisions deal with an altogether

121 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.

(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?

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 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 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.

122 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 could be issued only in the manner prescribed

and not in any other manner. Reference be made to judgment

of this 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 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."

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 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

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 prescribed by the statute itself. It was held as under:-

“27. Then it is to be seen that the Act requires the Board to exercise the power under Section 119 in a particular manner i.e. by way of issuance of orders, instructions and directions.

74 (1999) 3 SCC 422 75 (2002) 1 SCC 633 123 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 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 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.”

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

had the jurisdiction to publish notification under Section 5.

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, 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

124 of the word “errata”. “Errata” is a term of French origin which

means a thing that should be corrected. It means a mistake in

printing or writing. 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.

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’.

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 Rajyik Udyog Karmi Sangha v. State of Assam, (1996) Gau. 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 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 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.

76 (2007) 6 ALL LJ 50 125

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

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 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 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 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 interpolations visible to the naked eye which 126 creates a doubt 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

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 of succession

to, or any right, title or interest in Atiyat grants by repealing

Dastoor-ul-Amal Inams 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 Enquiries Act.

158. The Enquiries Act 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 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 127 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 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 as a result of inam or succession inquiries. Under

Section 3-A, the Atiyat Courts shall make inquiries as 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 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 the Inams Abolition Act but

contemplates the payment of compensation within the ambit

128 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 questions of succession,

legitimacy etc. in terms of Section 12 of the Act. Section 13

gives finality to the decision 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 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 before any Court of

law.

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

129 the competence of the 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 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 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 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.”

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 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

130 distribution of shares in the Biradari portion of Mashrut-ul-

Khidmat whereas rest of the property was to be considered

Madad Maash. Since the jurisdiction of the Nazim 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 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 qua the commutation amount payable

to the dependents of Sajjada and the amount payable to the

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 is

restricted only to 90% of the amount of the gross basic sum

referred to in Section 4 of the Commutation Regulation.

131 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 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

Sovereign has issued a Royal Order on 1 st 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 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 villages are

conditional on service to the Dargah. However, under Issue

No.3, it was held that Syed Safiullah Hussaini as Sajjada shall 132 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 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 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 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-Khidmat land 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 133 or the Commutation Regulation or under the Inams Abolition Act?

166. In a celebrated book titled as Mohammedan Law by Syed

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-mal and presented it to the grantee, or it is a portion of the royal domains; 2 nd, 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

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 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.

16. But the Mahommedan law relating to trusts differs 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 is used as implies wakf, or the tenor of the document shows, as in

77 AIR 1922 PC 123 134 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 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 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 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 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 the Muslim law as pious, religious or charitable and includes:

(i) a wakf by user;

(ii) Mashrut-ul-khidmat; 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 “wakif” means any person making such dedication. Consistently with this definition of “wakf”, a “beneficiary” has 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

78 AIR 1963 SC 985 135 objects and any other objects of public utility established for the benefit of the Muslim community. …”

169. The question as to whether the grant of Mashrut-ul-Khidmat

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

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 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 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 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 acceptance of the recommendations of the tribunals in pending succession cases; for under sub-s.

(3) of S. 9, the heirs of the deceased jagirdars are declared to be entitled to their shares in the income after the deduction of expenses.

136 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 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 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 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 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.”

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:

“11. …….But even this letter shows that the State has got the right to resume the grant at pleasure and if that

79 AIR 1961 SC 1442 137 is so it cannot be said that the jagirs granted in Hyderabad were permanent and 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 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 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 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 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 Secretary 82 wherein it was

held as under:

“20. (xii) These Paigah grantees, were not absolute

80 AIR 1954 Hyd 227 81 AIR 1960 SC 862 82 2018 SCC Online Hyd 360 138 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 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 troops, they were liable to be resumed by the Nizam if he so 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

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 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

individual but the Sovereign in whom the entire interest in the

139 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 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 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 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 Abolition and Commutation Regulations including

abolishing the jagirs granted to temples, mosques and other

140 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

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 for pious 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 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

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 respect of the land dedicated to Wakf.

141

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. 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 that the 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 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. Such jagirdar had no right to alienate the

property and after his death, the Sovereign may regrant the

same to his son but it is the Sovereign who has had the title

over the land at all material times.

177. The Shahi Farman dated 1st Ramjan 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 Hussaini, his heirs were minors 142 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 inam inquiries or

inheritance inquiries are required, the same shall be done as

per the rules and regulations. It 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 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 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 143 enacting the Abolition 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 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.

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 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

144 would be relevant only to the extent that such 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 Atiyat is only

a consequential decree subsequent to the order 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 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 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 145 the Nazim Atiyat had fixed the share of legal heirs. 1/3 family

share of Mashrut-ul-Khidmat 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 they were found to be jagir villages

whereas the other villages were found to be Madad Mash. But

all the properties were subject to Abolition 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 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 effect of determining the

share of all the legal heirs. Hence, the order of Nazim Atiyat

could not have overriding effect over the Abolition Regulation

and Commutation Regulation.

146

183. The order of the Chief Minister is to the effect that the

Manikonda Village has been handed over to the Government

due to 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 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 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 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 147 of Manikonda village had been handed over to the

Government due to abolition of jagirs and the commutation

amount is being sent to the 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

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

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 abolition of Inam under the Inams

Abolition Act.

188. In Mohd. Habbibuddin Khan, the appellant was a hissedar

148 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 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 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 Atiyat Inquiries Act, 1952 was amended contains the following observation:

“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….”

9. ....These questions, however, have to be decided for ascertaining 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. 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 dispute was after the death of

Nawab Nusrat Jung Bahadur who was the holder of the land 149 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 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 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 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 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

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 150 over Jagir lands, it frustrates the entire scheme 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. 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.

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 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:

“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,

151 however, patent that there are some clause which are inconsistent with the 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 are reasonably possible, the one which gives effect to all the clauses 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 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 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 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 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 reasonable construction, the document

must be held to have created a trust for public charitable

152 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 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.

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.

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 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: 153

“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 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-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 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 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.”

196. The land dedicated for pious and religious purpose is not im-

mune 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

Conversion into Ryotwari) Act, 1963 (Madras Act 30 of 1963)

was subject matter of challenge on the ground that the

83 (1970) 3 SCC 894 154 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 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 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 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 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.

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.

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 155 the Dargah. The arrears shall be calculated and paid to

the Dargah within 6 months.

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 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 forum in accordance with law. These appeals are

accordingly disposed of.

.............................................J. (HEMANT GUPTA)

.............................................J. (V. RAMASUBRAMANIAN) NEW DELHI;

FEBRUARY 07, 2022.

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