STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) vs A.P. STATE WAKF BOARD

STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) vs A.P. STATE WAKF BOARD

REPORTABLE
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)
W I T H
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
J U D G M E N T
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 3.4.20121
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
13-3-2006
(Sd/-)
Chief Executive Officer”
2. The above Errata notification was challenged by the then State
of Andhra Pradesh, now State of Telangana3
 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 Shah6
 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 Farman
8
 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 15th 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 Abolition 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 granted17
(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 subsection (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 subsection (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 (Amendment) 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 competent to make Atiyat enquiries and enquiries as to
claims to succession to and any right, title or interest in Atiyat grants and matters ancillary
thereto;
*[(b) “Atiyat grants” mean-
(i) in the case of jagirs abolished under [the Telangana (Abolition of Jagirs) Regulation, 1358F.] the
commutation sums payable in respect thereof under [the Telangana Jagirs (Commutation) Regulation, 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 Telangana Abolition of Inams Act, 1954] the compensation payable under that Act;]
xxx xxx xxx
(c) “Muntakhabs and Vasiqas” means documents issued by competent authorities as a result of Inam
or succession enquiries held under the Dastoorul-Amal Inams or other Government orders on the
subject and issued by way of continuance or confirmation 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 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.
20
3. *[Continuance of Atiyat grants:- All Atiyat grants
shall, subject to the provisions of the Andhra
Pradesh (Telangana Area) (Abolition of Jagirs) Regulation, 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 subclause (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 anything contained in [the Telangana (Abolition of Jagirs) 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 succession 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 subclauses (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 interest therein and matters ancillary thereto shall be
held in Atiyat Courts in accordance with the provisions of this Act.]
xxx xxx xxx
Constitution of Atiyat Courts, their jurisdiction and procedure.
12. *[(1)] In so far as questions of succession, legitimacy, 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 established 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 decision of the Civil Court.
21
[(2) If in the course of any Enquiry as to claims
to succession, any dispute arises involving questions 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 final 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 applicable-
(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 quitrent;
(ii) in respect of income accruing to the
inamdar from the lands registered in the names of
his permanent tenant, protected tenant and nonprotected 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 threefourths 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 subsection (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, 195419 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, 199521 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 subsection (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 9th 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 Mohammadnagar 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 pleadings of parties the following issues require a decision:-
1. Is the grant of jagirs and other maash covered by valid sanads and can these be confirmed as Mashrutul khidmat maash in the
name of the present claimant (incidentally,
it will have to be examined how far the contention of the Hzardars in respect of the nature of the maash, being zar-khareed is tenable).
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 14th 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 19th Amardad, 1320
Fasli for sanction of higher authorities. But on account 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 recommended to be confirmed as a Mashrutul-khidmat jagir for services to the Dargah in the name of the Sajjada 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-khareed 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-uGul24. 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 conditional Atiya Shahi Grant and treated as such by competent Atiyat authorities of the time. Hence, I entertain 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 conditional 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 established from records since a long time. The jagir villages and other properties have also been the subject 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 Akbar Husaini and thereafter it was under C.W.26 until it
was released from the C.W. only in 1956 through letter No. 545 dated 29-5-56. Hence the maash is confirmed as follows:
1. Villages Manikonda and Guntapally with all
items of Revenue inclusive of Excise as conditional 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 respective shares in the 1/3rd Biradari portion Mashrut-ulKhidmat 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 entitled to (legal) shares therein according to Siham-eSharai. The claimants Syed Shaha Safirulla Hussaini
as Sajjada and the performer of the service to the
 Dargah Sahrif shall be entitled to 2/3
rd
 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 commuta25 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 Kalabgore 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 Jagirs. As commutation of the said Jagirs, Jagir Administration’s Office was sending amounts to the
extent of the share of the dependents of the estate 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 dependents 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 maintenance of the late Sajjad’s family and the other dependents. 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 service 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 released 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
Numbe
r
Name of
Taluk or
village or
Ward
Name
and
situation
of Wakf
Sunni or
Shia
Area Name of
Mutawalli
3057,
3058 &
3059
Hyderaba
d West,
Taluk,
Dargah
Hussain
Shah Wali
(V)
1.Dargah
Hazrath
Jussain
Shah
Wali
2.
Khanqa
With
Mosque
and well.
3. House
on the
North
side of
Khanqah
Area
1. 3165 sq.
Yds.
2. 1222
Sq. Yds
3. 1069.5
Sq. Yds.
(S) (262,
261 &
260/1)
Syed
Safiullah
Hussaini
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. 9th
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 2nd 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
The Chief Executive Officer
A.P. State Wakf Board
Hyderabad
To
The Commissioner,
Govt. Printing Press,
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 overwriting/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
1
st 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 1st
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 regranted 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 Others
29
.
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 Others
30
.
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 2/3rd
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
Others
31
 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 Others
32
. 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 Others
33 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
Chancellor
35
 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 Madras
37
, Whirlpool Corporation v.
Registrar of Trademarks
38
 and Balkrishna Ram v. Union of
India
39
.
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 Khan
40
. 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 jurisdiction 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 limited 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 notification 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 alternatives 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 empowers 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-judicial decision in terms of Section 40 of the Act. The determination 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 Welfare
41
.
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
Pradesh
43
 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 Tribunal 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. Hughes
51
. 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 2/3rd
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 succeed, it needs to be proved that the Dargah does not have title
on the land. However, such question cannot be comprehensively 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 Muslim 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 jurisdiction 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 Corporation v. Registrar of Trade Marks, Mumbai & Ors.
58
 is distinguishable as the High Court can decline to exercise its jurisdiction if it is satisfied that an aggrieved party can obtain relief before an alternative forum. Reference was made to judgment of
this Court reported as Commissioner of Income Tax & Ors.
v. Chhabil Dass Agarwal
59
. In Whirlpool, the High Court relegated 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 Others
61
,
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 & Ors
63 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 Karnataka
67
, 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 instrumentality 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 Constitution. 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 discrimination 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 statutory 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 citizens must have an opportunity to meet the case. Audi alteram 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 Excise
68
.
127. The Constitution Bench in a judgment reported as Electronics
Corporation of India Limited v. Union of India
69 has recalled 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. Therefore, 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 India
70
, 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 quasijudicial 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 deduced principles as to when an authority can be said to exercising 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 quasijudicial 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 quasijudicial 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 quasijudicial 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 Division 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 quasijudicial 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 subsection (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
Kerala
74 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. Ghaswala
75
 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-ulKhidmat 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 1st 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; 2nd, 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 Hyderabad
80
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-ulKhidmat 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-ulKhidmat 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-ulKhidmat 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 immune 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.
156

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