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2019 Supreme(AP) 346
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
C. Praveen Kumar, M. Satyanarayana Murthy, JJ.
S.M. Ibrahim – Appellant
Versus
Chief Executive Officer, A.P. State Wakf Board and ors. – Respondents
WP No. 25219 of 2011
Decided On : 01-10-2019
Advocate Appeared:
For the Appellant : P. Roy Reddy
For the Respondent: Syed Naimullah Shakeel and S. Arifullah, SC
A Wakf Board cannot issue an errata notification declaring a property as Wakf without following the procedure prescribed under the Wakf Act, 1954 and without giving an opportunity to the person claiming title to the property to be heard.
Headnote:
WAKF ACT - ERRATA NOTIFICATION - VALIDITY - PRINCIPLES OF NATURAL JUSTICE - NOTICE - JURISDICTION OF HIGH COURT - WRIT PETITION - MAINTAINABILITY - WAQF TRIBUNAL - JURISDICTION - STATUTORY REMEDY - LIMITATION - WAQF PROPERTY - GRANT - NATURE - SERVICE INAM - PERSONAL INAM - DISTINCTION - WAQF BOARD - POWERS - ENQUIRY - PROCEDURE - JUDICIAL REVIEW - SCOPE.
Fact of the Case:
Petitioner challenged the errata notification dated 26.4.2008 issued by the Chief Executive Officer, A.P. State Wakf Board, declaring the schedule property as Wakf, on the ground that it was not in accordance with the provisions of the Wakf Act, 1954 (the Act). The petitioner claimed to be the owner of the property, which was granted as personal Inam in 1860. The petitioner contended that the errata notification was issued without following the procedure prescribed under the Act and without giving him an opportunity to be heard. The respondents contended that the property was a service Inam and therefore, it was a Wakf property. They also contended that the petitioner's remedy was to approach the Wakf Tribunal under Section 7 of the Act and not to file a writ petition under Article 226 of the Constitution of India.
Finding of the Court:
The High Court held that the errata notification dated 26.4.2008 was illegal and liable to be set aside on the following grounds: 1. The Wakf Board did not follow the procedure prescribed under the Act while issuing the errata notification. 2. No notice was issued to the petitioner before issuing the errata notification, which was a violation of the principles of natural justice. 3. The Wakf Board did not comply with the direction issued by the first appellate Court in AS No. 40 of 1991, which directed the Wakf Board to conduct a fresh enquiry in accordance with the provisions of the Act, giving an opportunity to the petitioner. The High Court also held that the petitioner's writ petition was maintainable under Article 226 of the Constitution of India, as the Wakf Tribunal did not have jurisdiction to decide the validity of the errata notification.
Issues: 1. Whether the errata notification dated 26.4.2008 issued by the Chief Executive Officer, A.P. State Wakf Board, was in accordance with the provisions of the Wakf Act, 1954? 2. Whether the petitioner's remedy was to approach the Wakf Tribunal under Section 7 of the Act or to file a writ petition under Article 226 of the Constitution of India? 3. Whether the property in dispute was a service Inam or a personal Inam?
Ratio Decidendi: 1. The Wakf Board did not follow the procedure prescribed under the Act while issuing the errata notification. 2. No notice was issued to the petitioner before issuing the errata notification, which was a violation of the principles of natural justice. 3. The Wakf Board did not comply with the direction issued by the first appellate Court in AS No. 40 of 1991, which directed the Wakf Board to conduct a fresh enquiry in accordance with the provisions of the Act, giving an opportunity to the petitioner. 4. The petitioner's writ petition was maintainable under Article 226 of the Constitution of India, as the Wakf Tribunal did not have jurisdiction to decide the validity of the errata notification.
Final Decision: The High Court allowed the writ petition and set aside the errata notification dated 26.4.2008. The High Court also granted liberty to the Wakf Board to conduct a fresh enquiry in accordance with the provisions of the Act, giving an opportunity to the petitioner to be heard.
JUDGMENT :
M. Satyanarayana Murthy, J.
1. This petition under Article 226 of the Constitution of India is filed by S.M. Ibrahim claiming writ of certiorari, to call for the records pertaining to errata notification dated 26.4.2008, published in A.P. Gazette No. 20 Part-II dated 15.5.2008, issued by the Chief Executive Officer, A.P. State Wakf Board and declare the same as illegal, holding that it is not in accordance with the provisions of the Wakf Act (for short 'The Act') and set aside the same.
2. It is alleged that the petitioner is the owner of the total extent of Acs. 3.70 cents in Sy. No. 18/1 of Nagarajupally Revenue Village within the limits of Kadapa Municipal Corporation. It is a personal Inam granted in favour of his ancestors, recognized and affirmed by Inam Commissioner in the year 1860, evidenced by Inam Fair Register, Title Deed No. 3224 dated 14.11.1860. In column No. 2 of the Inam Fair Register, the nature of Inam was described as personal Inam, in column No. 10, it was mentioned as hereditary in nature. Column No. 3 disclosed a Paimaish No. 66 as the Survey Operations were not yet effected by the year 1860. In Inam Fair Register, in column No. 8, the nature of Inam was described as "for subsistence as charity" i.e., given as charity for the subsistence of the grantee. Column No. 14 of Inam Fair Register discloses that land stood registered in the name of Smt. Ameen Shah Fakeera in the register prepared according to Regulations XXXI of 1802. Column Nos. 16 to 18 show that, in the year 1860 (year of enquiry by Inam Commissioner) the land was in possession of Bismillah Shah, the grandson of Smt. Ameen Shah Fakeera. By successive devolutions one H.S.M.A Manju Meah No. 11, became the owner of the property.
3. Sri Manju Meah No. 11, bequeathed the said property in favour of his 2nd wife Smt. Dadebi Sheba in the year 1910. She in her turn conveyed part of the property in favour of her daughter i.e. petitioner's mother by name Smt. Khaimnnissa under gift settlement deed dated 14.12.1937. After her death, the entire property is devolved upon this petitioner being the legal heir.
4. The petitioner's ancestors have constructed a Mosque which is popularly known as "Amin Shah Mosque". The Mosque and the Tombs occupy only an extent of Ac. 0.13 cents out of Acs. 3.70 cents. In the later years, public was also allowed to offer prayers and worship in the Mosque. The total extent was succeeded by this petitioner from her ancestors and donated Ac. 0.13 cents to the Mosque, Ac. 0.03 cents to the Municipality for setting up drinking water taps, it is now called as "Manjumiah Park". In the rest of the land, the petitioner mortgaged Ac. 0.09 cents to Nazir, S/o. Ghouse Mohiddin, Ac. 0.02 cents to V. Naveen S/o. Rama Murthy, Ac. 0.18 cents to Sabjan, S/o. Hameed and Ac. 0.20 cents to S.A. Sattar who is the husband of the petitioner. The said mortgagee's are in possession and enjoyment of the respective extents. Out of the total extent of Acs. 3.70 cents, besides mortgaging various extents of land, the petitioner sold Ac. 0.22 cents to P. Ramappa, Ac. 0.04 cents to P. Siva Prasad, Ac. 0.08 cents to A. Sai Prasad and Ac. 0.04 cents to Abdul Lateef. In the rest of Acs. 2.67 cents several rooms are in existence and those rooms were let out by the petitioner to different tenants, they are in occupation.
5. The petitioner narrated the civil litigation, both filed against him and his ancestors and by him against third parties in various paras of the petition. The details of the civil litigation decided by various Court both in original, appeal and second appeal filed by him and against him by third parties in the table given hereunder:
| S. No. | OS No. and relief prayed for | Relief granted |
| 1. | OS No 334 of 1964 filed by M. Ismail against the petitioner herein on the file of District Munsiff Court, Kadapa for declaration of | |
