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Synopsis

The Telangana High Court has ruled that the Waqf Board cannot establish claim over a property merely by issuing a notification stating that “It is the bounden duty of the respondents to produce the record to validate the claim of the Waqf Board that subject lands are waqf property.”

A division bench comprising of the Chief Justice Alok Aradhe and Justice Anil Kumar Jukanti, made the observation while hearing a plea revolving around the legality of a Gazette Notification issued on February 15, 1990, designating specific lands as Waqf property.

The petitioners, who had purchased agricultural land in various survey numbers in 2007, challenged the validity of this notification. They argued that the lands they acquired were not Waqf property and should be treated as private lands. The petitioners provided evidence of their ownership through registered sale deeds and relevant documents.

The petitioners referenced a representation made to the Tahsildar, wherein they were informed about the Waqf Board's claim over the lands based on a Gazette notification from 1990. They expressed dissatisfaction with the lack of clarity regarding the origins of the waqf, as the Gazette did not specify who made the waqf and when it was made, except for listing the survey numbers, extents, village, and mandal.

The petitioners provided additional details regarding the history of ownership of the lands, stating that their vendor's vendor, Shaik Jamel Saheb, obtained ORCs under Section 10 of the Inams Act, 1955, in the year 1987 for specific survey numbers and extents of land. They further mentioned their intention to sell a portion of the subject land, which was met with refusal by the Sub-Registrar citing that the lands were deemed waqf and therefore could not be alienated.

The petitioners claimed to have thoroughly verified their land's title by examining various documents, including passbooks, title deeds under the Telangana Rights in Land and Pattadar Passbooks Act of 1971 (ROR Act), link documents, and Occupancy Rights Certificate (ORC) under the Inams Act, 1955. They asserted that after their purchase, they were issued pattadar passbooks and title deeds under the ROR Act, confirming their ownership of the lands.

Moreover, the petitioners raised concerns about the procedural irregularities in the Waqf Board's claim, arguing that the notification issued in 1990, subsequent to the issuance of ORCs in 1987, lacked validity. They contended that the respondents failed to follow the prescribed procedure under the Waqf Act of 1954 before conducting the survey and publishing the Gazette notification.

The Waqf Board, on the other hand, opposed the plea, citing the proviso to Section 4(1)(c) of the Inams Act, 1955, which specifies that only charitable and religious institutions, not individuals, can be registered as occupants. They argued that steps were being taken to remove encroachers under the Act, 1954, and asserted that the survey and notification issuance adhered to the Act's provisions.

Additionally, they emphasised the exclusive jurisdiction of the Waqf Tribunal in such matters stating that “Waqf Tribunal has got sufficient jurisdiction to try and decide the disputes relating to either a waqf or a waqf property.”

The court, after hearing learned counsels and examining the record, noted that the petitioners had purchased the property in 2007. When they attempted to sell a portion of it, objections were raised by the Sub-Registrar, citing the land as waqf property. The court acknowledged that the petitioners' vendors had been issued proceedings by the Sub-Collector, Bhongir, in 1987, confirming their occupancy rights. The court also considered whether the Waqf Tribunal was the sole authority to examine the validity of the 1990 notification, concluding that a similar issue had been addressed by a Division Bench previously.

The court noted that “no record whatsoever has been placed before this Court to arrive at a conclusion/finding that the said extents of lands in various survey numbers were waqf property.” Specifically, no register of waqfs or survey report, as mandated by the Act, 1954, had been provided to substantiate the assertion of the waqf board.

The court further observed that the counter affidavit filed by the waqf board lacked crucial details regarding the inquiry conducted to determine if the property was waqf property. No information was provided about the survey dates, witnesses examined, documents reviewed, or any other steps taken as required by Section 4 of the Act, 1954.

Despite this lack of evidence, the court noted that the “Waqf Board submitted that once a Gazette publication is issued, the property vests with the Waqf Board and any dispute is to be decided only by the Waqf Tribunal. We are afraid that in peculiar facts of the case such a submission cannot be accepted.”

Furthermore, the court decisively ruled that “A notification issued by the Waqf Board cannot nullify the proceedings issued by the Sub-Collector.” In light of the circumstances, the court found no validity in the argument presented by the respondents' counsel that the petitioners should seek recourse through the alternative remedy of approaching the Waqf Tribunal.

The court rejected the claim of the Board stating “The very notification issued is under a cloud as no record has been placed to dispel the contentions of the petitioners.”

Ultimately, the court set aside the 1990 notification, allowing the writ petition.

 

Cause Title:  Kolachi Ram Reddy v State of Andhra Pradesh [WP 20875 of 2009]