Gazette Notification Alone Not Binding On Third Parties | Andhra Pradesh High Court Allows Property Owners To Challenge Wakf Classification
Safiya Malik
The Division Bench of the Andhra Pradesh High Court at Amaravati, comprising Justice R. Raghunandan Rao and Justice Maheswara Rao Kuncheam, disposed of a writ appeal concerning classification of land as Wakf property. The Court affirmed that the declaration of a property as Wakf through a gazette notification issued under the Wakf Act, 1954, is not automatically binding on private individuals who were not given notice or opportunity during the preliminary survey. The Division Bench stated, "a stranger to a Wakf is not required to file any suit for declaration of his title in as much as the proviso to sub-section (1) of Section 6, is not applicable to such a stranger." The Court granted liberty to the appellants to file a suit for declaration within three months and ordered that the status quo be maintained in the meantime.
The appellants in the present matter had purchased various plots in Survey No. 327 of Palamaner Village, Chittoor District, and constructed houses on them. Some among the appellants approached the Sub-Registrar at Palamaner for market value estimations in connection with registration, but were refused information on the basis of an endorsement referencing a letter from the Wakf Board dated 12 October 2012. The endorsement stated that the land was Wakf property and that no registrations could be entertained.
Challenging the endorsements and the Wakf Board letter, the appellants filed W.P. No. 30916 of 2014, claiming that the land was private property with clear title originating from a sale deed dated 10 October 1946, well before the enactment of the Wakf Act, 1954. They also contended that they had obtained building permissions from the Municipality and were in uninterrupted possession for over six decades.
In support, they cited W.P. Nos. 12412 and 12875 of 2017 concerning similar land in Sy. No. 963/3, where the High Court had cited in their favour by an order dated 18 July 2013.
The Wakf Board contested the writ petition, claiming that the land (Ac. 2.04 cents in Sy. No. 327) was Inam Land granted under Title No. 1979 for the purpose of services to an Ashurkhana, tomb maintenance, and religious events. It was argued that Sri Syed Hyder Saheb, named as Muthawali, was merely a manager and could not alienate the land. Consequently, any sale made by his family members was void and did not confer ownership to the purchasers. The Wakf Board also invoked the bar on maintainability under Article 226, contending that alternative remedies were available.
A survey conducted under the Wakf Act, 1954, reportedly noted that the land was granted as Inam for Moharram celebrations and that it was not generating revenue due to being surrounded by dwellings. A Gazette Notification dated 28 June 1962 had classified the land as Wakf property.
The learned Single Judge, upon considering the Gazette Notification and other materials, held that there was sufficient prima facie evidence to treat the property as Wakf. However, it was recorded that this would not preclude the appellants from seeking legal remedy to establish their title. The writ petition was dismissed via judgment dated 20 February 2015, prompting the present appeal.
Senior Counsel N. Subba Rao, representing the appellants, submitted that mere notification under the Wakf Act does not bind third parties. Referring to the judgment of the learned Single Judge, he noted that no notice was issued to the appellants during the survey, thereby violating natural justice. He also pointed to a Tahsildar's report in I.A. No. 1 of 2016 which stated that Moharram was not being celebrated on the land, contrary to what was recorded in the survey.
It was further submitted that the Gazette Notification lacked legal sanctity due to absence of enquiry and supporting details regarding dedication. Revenue records treated the land as private patta land and the government had acquired part of it earlier while paying compensation to the then-owners.
Citing The Board of Muslim Wakfs, Rajasthan v. Radha Krishna and Others, AIR 1979 SC 289, the appellants argued that the notification under Section 5 of the Wakf Act, 1954, was not binding on persons who were not parties to the Wakf.
Senior Counsel P. Veera Reddy, appearing for the Wakf Board, contested the reliance on the 1979 Supreme Court judgment, stating that the Wakf Act, 1995 had altered the statutory framework. He also noted that the Gazette Notification of 28 June 1962 had not been specifically challenged, and the proceedings in question were merely consequential.
The Court extensively examined Sections 5 and 6 of both the Wakf Act, 1954 and Wakf Act, 1995. It quoted the Supreme Court’s judgement in Radha Krishna, stating:
"It follows that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list."
The Bench observed that such a person was not required to file a suit for title declaration within one year, as the limitation under the proviso to Section 6(1) of the 1954 Act did not apply.
Addressing the arguments under the 1995 Act, the Bench held: "This Court is unable to accede to this contention. The publication and the notification, in the gazette, relating to this property was made under the provisions of the Wakf Act, 1954."
It held that the Supreme Court judgement remained valid even after the 1995 Act came into force and that strangers to a Wakf could still initiate suits without being constrained by the one-year limitation.
The Bench also acknowledged the existence of redressal mechanisms under Section 22-A of the Registration Act, 1908, as clarified in the Full Bench judgment of Vinjamuru Rajagopala Chary v. State of Andhra Pradesh and Others, 2016 (2) ALD 236 (FB). It referred to Clause (ix), (xii), and (xv) of Paragraph 156 of the said judgment, which outlined procedures for parties to seek deletion or modification of entries in the restricted registration list.
The Court stated: "These guidelines, as far as this case is concerned, would mean that the appellants herein would be entitled to move the Wakf Board for deletion of their property from the prohibitory list maintained under Section 22-A(c) of the Registration Act."
Having noted that the appellants did not challenge the Gazette Notification of 1962, the Court granted liberty to file a suit under the Wakf Act, 1995, seeking declaration that the land is not Wakf property. It recorded:
"Needless to say, a question of limitation would not arise, as the appellants have been agitating their rights before this Court since the date of their knowledge of inclusion of their property in the Wakf register and by way of publication in the gazette."
The Court further ordered: "The appellants are given 3 months’ time, to file their suit/proceeding, before the appropriate forum. To enable such filing, the present status quo will be maintained for a period of three months. In the event of such a suit being filed within the aforesaid time, the status quo existing, as on today, shall be maintained till the disposal of the said suit/proceeding."
The writ appeal was accordingly disposed of, with no order as to costs. Miscellaneous applications, if any, were deemed closed.
Advocates Representing the Parties:
For the Appellants: N Subba Rao
For the Respondents: Government Pleader for Assignment (Andhra Pradesh), Government Pleader for Revenue (Andhra Pradesh), K Ramakanth Reddy, Shaik Khaja Basha, P. Veera Reddy (Senior Counsel for Wakf Board)
Case Title: Smt. B. Rupalatha and Others v. State of Andhra Pradesh
Neutral Citation: APHC010119142015
Case Number: Writ Appeal No. 1083 of 2015
Bench: Justice R. Raghunandan Rao and Justice Maheswara Rao Kuncheam
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