# STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v. A. P. STATE WAKF BOARD & ORS

- **Citation:** [2022] 19 S.C.R. 1226
- **Court:** Supreme Court of India
- **Decided:** 2022-02-07
- **Case number:** Civil Appeal No. 10770 of 2016
- **Bench:** Hemant Gupta, V. Ramasubramanian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-andhra-pradesh-now-state-of-telangana-v-a-p-state-wakf-board-ors-36220
- **Pages:** 129

## Headnote

Wakfs - Publication of Notification issued by Wakf Board in
the State Government Gazette - Effect of - Whether the State is
estopped to challenge such notification - Held: The Wakf Board is
a statutory authority under the 1954 Act as well as under the 1995
Act - The Official Gazette has to carry any notification at the instance
of the Wakf Board - 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 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 - The mere reason that
the notification was published in the State Government gazette is
not binding on the State Government - Wakf Act, 1995 - Wakf Act,
1954.
Wakfs - Wakf Act, 1995 - ss.40 and 32(2)(n) - Wakf property
- Whether power to investigate and determine the nature of property
is an administrative function or a quasi-judicial function as an
inquiry is required to be conducted before any property is declared
to be Wakf property - Power of the Wakf Board to investigate and
determine the nature and extent of Wakf - Held: Is not purely an
administrative function - The power to determine under s.32(2)(n)
is the source of power but the manner of exercising that power is
contemplated u/s.40 - An inquiry is required to be conducted if a
Board on the basis of information collected finds that the property
in question is a wakf property - An order passed thereon is subject
to appeal before the Wakf Tribunal, after an inquiry required is
conducted in terms of sub-section (1) of s.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
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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 - The Wakf Board has power to determine the
nature of the property as wakf under s.32(2)(n) but after complying
with the procedure prescribed as contained in s.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 -
On facts, 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
impugned Errata notification, that is, order of the NazimAtiyat 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 u/s.40 - Since there is no determination of the fact
whether the property in question is a wakf property after conducting
an inquiry in terms of s.40(1), the Errata notification cannot be
deemed to be issued in terms of s.32 r/w s.40.
Wakfs - Wakf Act, 1995 - s.40(3), proviso - Reliance on
proviso to s.40(3) of 1995 Act, contemplating notice to the registered
trust or society in case the Wakf Board has any reason to believe
that any property is Wakf and is registered under any of the Acts -
Held: Is absolutely misconceived - These provisions deal with an
altogether different situation - If a trust or society is already
registered but the Wakf 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.
Wakfs - Entitlement of Government to dispute validity of
Notification issued by Wakf Board before the Writ Court u/Art. 226
of the Constitution - Held: State Governm

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SUPREME COURT REPORTS
[2022] 19 S.C.R.
[2022] 19 S.C.R. 1226
1226
STATE OF ANDHRA PRADESH
(NOW STATE OF TELANGANA)
v.
A. P. STATE WAKF BOARD & ORS.
(Civil Appeal No. 10770 of 2016)
FEBRUARY 07, 2022
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Wakfs - Publication of Notification issued by Wakf Board in
the State Government Gazette - Effect of - Whether the State is
estopped to challenge such notification - Held: The Wakf Board is
a statutory authority under the 1954 Act as well as under the 1995
Act - The Official Gazette has to carry any notification at the instance
of the Wakf Board - 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 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 - The mere reason that
the notification was published in the State Government gazette is
not binding on the State Government - Wakf Act, 1995 - Wakf Act,
1954.
Wakfs - Wakf Act, 1995 - ss.40 and 32(2)(n) - Wakf property
- Whether power to investigate and determine the nature of property
is an administrative function or a quasi-judicial function as an
inquiry is required to be conducted before any property is declared
to be Wakf property - Power of the Wakf Board to investigate and
determine the nature and extent of Wakf - Held: Is not purely an
administrative function - The power to determine under s.32(2)(n)
is the source of power but the manner of exercising that power is
contemplated u/s.40 - An inquiry is required to be conducted if a
Board on the basis of information collected finds that the property
in question is a wakf property - An order passed thereon is subject
to appeal before the Wakf Tribunal, after an inquiry required is
conducted in terms of sub-section (1) of s.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
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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 - The Wakf Board has power to determine the
nature of the property as wakf under s.32(2)(n) but after complying
with the procedure prescribed as contained in s.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 -
On facts, 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
impugned Errata notification, that is, order of the NazimAtiyat 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 u/s.40 - Since there is no determination of the fact
whether the property in question is a wakf property after conducting
an inquiry in terms of s.40(1), the Errata notification cannot be
deemed to be issued in terms of s.32 r/w s.40.
Wakfs - Wakf Act, 1995 - s.40(3), proviso - Reliance on
proviso to s.40(3) of 1995 Act, contemplating notice to the registered
trust or society in case the Wakf Board has any reason to believe
that any property is Wakf and is registered under any of the Acts -
Held: Is absolutely misconceived - These provisions deal with an
altogether different situation - If a trust or society is already
registered but the Wakf 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.
Wakfs - Entitlement of Government to dispute validity of
Notification issued by Wakf Board before the Writ Court u/Art. 226
of the Constitution - Held: 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 -
On facts, the State Government was competent to invoke the writ
jurisdiction against the action of the Wakf Board to declare the
land in question as wakf property - Constitution of India - Art.
226.
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v.
A. P. STATE WAKF BOARD
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SUPREME COURT REPORTS
[2022] 19 S.C.R.
Wakfs - Wakf Act, 1995 - s.5 and s.32(2)(n) r/w s.40 - Errata
notification published by Wakf Board in the year 2006, 17 years
after the first notification in 1989 - Challenge to - Held: In the
facts of the present case, the Errata notification was 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 s.32(2)(n) r/w s.40 or on the basis of
survey report which was called by the State Government by
appointing a Survey Commissioner.
Wakfs - Whether on facts, the High Court was justified in
relegating the parties to statutory remedy before the Wakf Tribunal
- Held: High Court 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 expressed the same to be prima
facie view, but in fact, nothing 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, the questions raised
were interpretation of the statutes, 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 - 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 counsel for the parties
- Thus, the High Court erred in law, in the facts and circumstances
of the case, to relegate the parties to the statutory remedy.
Wakf Act, 1995 - ss.5 and 105 - Publication of Errata
notification u/s.5 - Powers conferred on the Wakf Board - Nonsubmission of second survey report to the State Government - Effect
- Plea that once the Wakf 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 report was not submitted to the
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State Government as contemplated by sub-section (1) of s.5 -
Tenability of - Held: The plea that the notification is in terms of s.5
of 1995 Act is not tenable - 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
- The Wakf Board may have a right to requisition of any document
in terms of power conferred u/s.105, 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 - 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 - Therefore, it cannot be said that
since submission of the second survey report to the State Government
was only a ministerial action, therefore, the Board had the
jurisdiction to publish notification u/s.5.
Right of the State to acquire property - Land dedicated for
pious and religious purpose is not immune from its vesting with the
State.
Andhra Pradesh (Telangana Area) Atiyat Enquiries Act, 1952
-Jurisdiction of the Atiyat Court - Held: Is limited to disputes relating
to Atiyat grants as defined in the Enquiries Act.
Words and Phrases - Word "errata" - Scope and meaning of
- Held: "Errata" is a term of French origin which means a thing
that should be corrected - It means a mistake in printing or writing.
Allowing the appeals, the Court
HELD: 1. In the case at hand, 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 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, 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
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v.
A. P. STATE WAKF BOARD
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[2022] 19 S.C.R.
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 counsel for the parties. Thus, the High Court erred
in law, in the facts and circumstances of the case, to relegate the
parties to the statutory remedy before the Wakf Tribunal. [Para
119][1316-A-D]
2. 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. [Para 125][1318-FG]
3. 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. A perusal of the record
of the Wakf Board, shows that the Errata notification was published
when the same was sent by the Chief Executive Officer of the
Wakf Board to the 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. 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. 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
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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. [Para 129, 130, 131][1320-B-F]
4. 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 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. [Para 132][1321-G-H]
5. 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 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. [Para
146][1329-F-H]
6. 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
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v.
A. P. STATE WAKF BOARD
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SUPREME COURT REPORTS
[2022] 19 S.C.R.
conferred right on the affected parties to avail the remedy of
appeal under Section 40 of the 1995 Act. [Para 147][1330-A-B]
7. 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 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. [Para 148][1330-C-D]
8.1. The question to be examined was 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.
[Para 152][1332-C-D]
8.2. 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. [Para 154][1333-G-H; 1334A]
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9. 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 Jurisdiction of the
Atiyat Court would be limited to the disputes relating to Atiyat
grants as defined in the Enquiries Act. [Paras 162 and 165][1336D-E; 1338-B]
CIT v. Anjum M.H. Ghaswala (2002) 1 SCC 633
: [2001] 4 Suppl. SCR 303 - followed.
Director of Settlements, A.P. & Ors. v. M.R. Apparao &
Anr. (2002) 4 SCC 638 : [2002] 2 SCR 661 and D B
Babu Verghese v. Bar Council of Kerala (1999) 3 SCC
422 : [1999] 1 SCR 1121 - relied on.
Rashid Wali Beg v. Farid Pindari & Ors. (2021) SCC
Online SC 1003; Board of Wakf, West Bengal & Anr. v.
Anis Fatma Begum & Anr. (2010) 14 SCC 588; Union
of India v. T.R. Varma, AIR 1957 SC 882; Union of
India & Ors. v. Ghaus Mohammad AIR 1961 SC 744
: [1962] SCR 744 and Balkrishna Ram v. Union of India
(2020) 2 SCC 442 : [2020] 2 SCR 581 - distinguished.
Sikander Jehan Begum v. A.P. State Govt. AIR 1962
SC 996 : [1962] Suppl. SCR 226; Raja Ram Chandra
Reddy & Anr. v. Rani Shankaramma & Ors. AIR 1956
SC 319; M.P. Wakf Board v. Subhan Shah (Dead) By
Lrs. and Others (2006) 10 SCC 696 : [2006] 8 Suppl.
SCR 85; Mohd. Habbibuddin Khan v. Jagir
Administrator, Government of Andhra Pradesh and
Others (1974) 1 SCC 82; K.S.B. Ali v. State of A.P. and
Others (2018) 11 SCC 277 : [2017] 12 SCR 698;
Committee of Management and another v. Vice
Chancellor (2009) 2 SCC 630 : [2008] 17 SCR 774;
Addl. Secy. to the Govt. of India v. Alka Subhash Gadia
(Smt) 1992 Supp (1) SCC 496 : [1990] 3 Suppl.
SCR 583; K.K. Kochunni v. State of Madras AIR 1959
SC 725 : 1959 Suppl. SCR 316; Whirlpool Corporation
v. Registrar of Trademarks (1998) 8 SCC 1 : [1998]
2 Suppl. SCR 359; Kranti Associates (P) Ltd. v. Masood
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v.
A. P. STATE WAKF BOARD
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SUPREME COURT REPORTS
[2022] 19 S.C.R.
Ahmed Khan (2010) 9 SCC 496 : [2010] 10 SCR 1070;
Indian National Congress (1) v. Institute of Social
Welfare (2002) 5 SCC 685 : [2002] 3 SCR 1040;
Harbans Lal Sahnia v. Indian Oil Corp. (2003) 2 SCC
107; Radha Krishan Industries v. State of Himachal
Pradesh (2021) 6 SCALE 78; Rajasthan Wakf Board
v. Devki Nandan Pathak & Ors. (2017) 14 SCC 561 :
[2017] SCR 878; Haryana Wakf Board v. Mahesh
Kumar (2014) 16 SCC 45 : [2013] 12 SCR 596; Punjab
Wakf Board v. Sham Singh Harike (2019) 4 SCC 698;
Telangana State Wakf Board & Anr. v. Mohamed
Muzafar (2021) 9 SCC 179; Nawab Zain Yar Jung
(since deceased) & Ors. v. Director of Endowments &
Anr. AIR 1963 SC 985 : [1963] SCR 469; Sayyed Ali
& Ors. v. A.P. Wakf Board, Hyderabad & Ors. (1998) 2
SCC 642 : [1998] 1 SCR 398; T.N. Wakf Board v.
Hathija Ammal (Dead) by LRs & Ors. (2001) 8 SCC
528 : [2001] 2 Suppl. SCR 428; Madanuri Sri Rama
Chandra Murthy v. Syed Jalal (2017) 13 SCC 174 :
[2017] 5 SCR 294; Chief Conservator of Forests, Govt.
of A.P. v. Collector & Ors. (2003) 3 SCC 472 : [2003]
2 SCR 180; K.B. Ramachandra Raje Urs (Dead) by
Legal Representatives v. State of Karnataka & Ors.
(2016) 3 SCC 422 : [2015] 11 SCR 974; Whirlpool
Corporation v. Registrar of Trade Marks, Mumbai &
Ors. (1998) 8 SCC 1 : [1998] 2 Suppl. SCR 359;
Commissioner of Income Tax & Ors. v. Chhabil Dass
Agarwal (2014) 1 SCC 603; Babubhai Muljibhai Patel
v. Nandlal Khodidas Barot and Others (1974) 2 SCC
706 : [1975] 2 SCR 71; Radha Krishan Industries v.
State of H.P. (2021) 6 SCC 771; Rajasthan State
Electricity Board, Jaipur v. Mohan Lal & Ors AIR 1967
SC 1857 : [1967] SCR 377; State of U.P. v. Neeraj
Awasthi & Ors. (2006) 1 SCC 667 : [2005] 5 Suppl.
SCR 906; Dwarkadas Marfatia and Sons v. Board of
Trustees of the Port of Bombay (1989) 3 SCC 293
: [1989] 2 SCR 751; Shrilekha Vidyarthi (Kumari) v.
State of U.P. (1991) 1 SCC 212 : [1990] 1 Suppl. SCR
625; M.J. Sivani and others v. State of Karnataka (1995)
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6 SCC 289 : [1995] 3 SCR 329; Oil and Natural Gas
Commission v. Collector of Central Excise (1995) Supp
(4) SCC 541; Electronics Corporation of India Limited
v. Union of India (2011) 3 SCC 404 : [2011] 2 SCR
971; Province of Bombay v. Khushaldas S. Advani &
Ors. AIR 1950 SC 222 : [1950] SCR 621; State of
Himachal Pradesh v. Raja Mahendra Pal & Ors. (1999)
4 SCC 43 : [1999] 2 SCR 323; Nawab Zain Yar Jung
(since deceased) & Ors. v. Director of Endowments &
Anr. AIR 1963 SC 985 : [1963] SCR 469; Raja
Rameshwar Rao and Another v. Raja Govind Rao AIR
1961 SC 1442 : [1962] SCR 618; Sarwanlal & Anr. v.
State of Hyderabad (Now Andhra Pradesh) & Ors. AIR
1960 SC 862 : [1960] SCR 311 and Khajamian Wakf
Estates v. State of Madras (1970) 3 SCC 894 : [1971]
2 SCR 790 - referred to.
Raj Kishan Pershad and Ors. v. Joint Collector-I and
Ors. (2018) 6 ALT 79 (DB); Ahmad-Un-Nissa Begum
and Another v. The State through the Chief Minister
and Others AIR 1952 Hyd 163; K.S.B. Ali v. State of
A.P. and Others (2007) SCC Online AP 765; R.
Doraswamy Reddy v. The Board of Wakf A.P. Hyderabad
rep. by its Secretary 1978 SCC OnLine AP 117; A.P.A.
Rasheed v. N.N. Khalid Haji & Anr. 2011 SCC OnLine
Ker 4185; Parvati Devi v. State of U.P. (2007) 6 ALL
LJ 50; Vidya Varuthi Thirtha v. Balusami Ayyar & Ors.
AIR 1922 PC 123; Sarwarlal and Others v. State of
Hyderabad AIR 1954 Hyd 227;
M/s Trinity
Infraventures Limited v. The State of Telangana,
represented by its Principal Secretary 2018 SCC Online
Hyd 360; Universal Cans & Containers Ltd. v. Union
of India 1991 SCC Online Del 784; Ezhome Sunni
Valiya Juma Masjid v. Kerala State Wakf Board 2019
(3) KLT 1064 and Amjad Ali Mirza & Ors. v. Board of
Wakfs & Ors. [Decision dated 20.2.2019 of Calcutta
High Court in C.O. No. 749 of 2018] - referred to.
Attorney General v. Hughes (1899) 48 Weekly
Reporter 150 - referred to.
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v.
A. P. STATE WAKF BOARD
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[2022] 19 S.C.R.
Case Law Reference
[1960] SCR 311
referred to
Para 9
[1962] Suppl. SCR 226
referred to
Para 11
AIR 1956 SC 319
referred to
Para 22
[2006] 8 Suppl. SCR 85
referred to
Para 64
(1974) 1 SCC 82
referred to
Para 68
[2017] 12 SCR 698
referred to
Para 68
[2008] 17 SCR 774
referred to
Para 68
[1990] 3 Suppl. SCR 583
referred to
Para 71
[1959] Suppl. SCR 316
referred to
Para 71
[1998] 2 Suppl. SCR 359
referred to
Para 71
[2020] 2 SCR 581
distinguished
Para 71
[2010] 10 SCR 1070
referred to
Para 73
[2002] 3 SCR 1040
referred to
Para 74
(2003) 2 SCC 107
referred to
Para 79
(2021) 6 SCALE 78
referred to
Para 79
[2017] SCR 878
referred to
Para 82
[2013] 12 SCR 596
referred to
Para 82
(2010) 14 SCC 588
distinguished
Para 82
(2019) 4 SCC 698
referred to
Para 82
(2021) 9 SCC 179
referred to
Para 82
AIR 1957 SC 882
distinguished
Para 83
[1962] SCR 744
distinguished
Para 83
[1963] SCR 469
referred to
Para 85
[1998] 1 SCR 398
referred to
Para 86
[2001] 2 Suppl. SCR 428
referred to
Para 92
[2017] 5 SCR 294
referred to
Para 92
[2003] 2 SCR 180
referred to
Para 94
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[2015] 11 SCR 974
referred to
Para 96
[1998] 2 Suppl. SCR 359
referred to
Para 103
(2014) 1 SCC 603
referred to
Para 103
[2002] 2 SCR 661
relied on
Para 108
[1975] 2 SCR 71
referred to
Para 115
(2021) 6 SCC 771
referred to
Para 116
[1967]SCR 377
referred to
Para 120
[2005] 5 Suppl. SCR 906
referred to
Para 121
[1989] 2 SCR 751
referred to
Para 122
[1990] 1 Suppl. SCR 625
referred to
Para 123
[1995] 3 SCR 329
referred to
Para 124
(1995) Supp (4) SCC 541
referred to
Para 126
[2011] 2 SCR 971
referred to
Para 127
[1950] SCR 621
referred to
Para 141
[1999] 2 SCR 323
referred to
Para 142
[1999] 1 SCR 1121
relied on
Para 149
[2001] 4 Suppl. SCR 303
followed
Para 150
[1963] SCR 469
referred to
Para 168
[1962] SCR 618
referred to
Para 170
[1960] SCR 311
referred to
Para 171
[1971] 2 SCR 790
referred to
Para 196
CIVIL APPELLATE JURISDICTION : Civil Appeal No.10770
of 2016.
From the Judgment and Order dated 03.04.2012 of the High Court
of Judicature of Andhra Pradesh at Hyderabad in W. P. No.23578 of
2007.
With
Civil Appeal Nos.10738, 10768, 10769, 10773, 10775, 10776-10777,
10771, 10772 And 10774 of 2016.
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v.
A. P. STATE WAKF BOARD
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[2022] 19 S.C.R.
V. Giri, Huzefa A. Ahmadi, Nakul Dewan, C. S. Vaidyanathan,
Salman Khurshid, S. Wasim A. Qadri, Randeep Rai, Basavaprabhu S.
Patil, Ranjit Kumar, Anoop Chaudhary, Ashish Dholakia, K.
Ramamoorthy, Sr. Advs., P. Venkat Reddy, Prashant Kumar Tyagi, P.
Srinivas Reddy, Ms. Ankita Gupta, M/s Venkat Palwai Law Associates,
Ejaz Maqbool, Ms. Akriti Chaubey, Saif Zia, Ms. Shahrukh Alam, Rohan
Sharma, Rohan Andrew Naik, Ms. Smriti Kalra, Abu Akram, Ms. Tanya
Shree, Ms. Bina Madhavan, Sweena Nair, P. Mohith Rao, S. Udaya
Kumar Sagar, Lakshmi Raman Singh, Tamim A. Qadri, Saeed Qadri,
Ms. Lubna Naaz, Aman Khullar, Ms. Shama Usmani, Abhinav Agnihotri,
Dipan Sethi, Ms. Rubina Virmani, Sunil Fernandes, Anirudh Sanganeria,
Vikas Mehta, Adith Nair, Apoorv Khator, Bhaskar Nayak, V. Prabhakar,
Rajat Sehgal, Ms. Jyoti Parashar, N. J. Ramchandra, Francis Ilango,
Deepak Khurana, Ms. Nishtha Wadhawa, Umesh Kumar Khaitan,
Varinder Kumar Sharma, Varun Thakur, Ms. Parul Sharma, Bikash
Chandra, Brijesh Pandey, Salman Khan, Yugal Prasad, P. K. Singh, Ms.
Shraddha Saran, Shantanu Sharma, Akash Panwal, P. S. Sudheer, Bharat
Sood, Ms. Shruti Jose, Santanam Swaminadhan, Hirendranath, Ms.
Abhilasha Shrawat, Prakruti Golechha, Mrs. Aarthi Rajan, Smt. Laxmi
Arvind, Arvind Kumar, Pradeep Kumar Mathur, Khushant Wadhwa, M.
K. Tiwari, Chiranjeev Johri, Rambabu, N. Eswara Rao, Ms. Prity
Kumari, M/s M. Rambabu & Co., Mahfooz A. Nazki, Dr. Lalit Bhasin,
Ms. Nina Gupta, Ms. Ananya Marwah, Ms. Ruchika Joshi, Mudit Sharma,
M. A. Chinnasamy, C. Rubavathi, M. Veeraragavan, P. Rajaram, Kulwant
Singh Narwal, V. Senthil Kumar, Ch. Leela Sarveswar, Venkatasamy,
Dheeraj Nair, Ms. Avni Sharma, Manoj C. Mishra, M. Shoeb Alam,
Guntur Prabhakar, Kunal Verma, Ms. Yugandhara Pawar Jha, Ashwin
Kumar Nair, Satya Mitra, G. N. Reddy, T. V. Ratnam, P. Vinay Kumar,
Sumanth Nookala, Advs. for the appearing parties.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
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 where by
1 2012 SCC OnLine AP 704
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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
(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,
2 For Short "Wakf Board"
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v.
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
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214, 215, 216, 217, 218, 219,
220, 221, 222, 223, 224, 225,
226, 227, 228, 229, 231, 232,
233, 234, 235, 236, 237, 240,
241, 242, 244, 246, 247, 249,
250, 251, 252, 254, 256, 256,
257, 248, 258, 259, 260, 263,
264, 265 and 266 of Manikonda
(V) Rajendranagar (M) RR
District attached to D. Hazrath
Hussain Shah Vali (11) Total
Extent Ac:- 1654.32 Gts
Hyderabad
(Sd/-)
13-3-2006
Chief Executive Officer"
2. The above Errata notification was challenged by the then State
of Andhra Pradesh, now State of 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 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
3 For short, "the State"
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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 beenfiled 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 Corporation before the Wakf Tribunal. The present appeals are
thus filed by the State, the Corporation and the assignees from the State
and/or Corporation.
A. Background of Hyderabad State and its Administration
immediately prior to accession and soon thereafter.
5. At the time of Independence, the British gave rulers of the
Princely States an option to join either of the two countries, India or
Pakistan or to remain independent. His Exalted Highness "The Nizam
of Hyderabad Mir Osman Ali Khan"7 declared his unwillingness to
participate in the Constituent Assembly of both the countries on 11.6.1947.
Thereafter, "Operation Polo" was initiated by the Indian Army which
commenced on 13.9.1948. The Sovereign ultimately surrendered on
17.9.1948. The State of Hyderabad thereafter became part of the Union
of India. Major General J.N. Choudary, the General Officer Commanding
in Chief Southern Army was appointed to be the Military Governor for
the Hyderabad State. The Sovereign issued a Farman8 on 19.9.1948
investing the Military Governor with the authority to administer the State
which was published in the Extra-Ordinary Gazette on Aban 20, 1357
Fasli, i.e., 20.9.1948. On 7.8.1949, by another Farman, the Sovereign
clarified that all authorities for the administration of the State would now
4 For Short, "the Corporation"
5 For Short, the "Wakf Tribunal"
6 For Short, the "Dargah"
7 For Short, the 'Sovereign'
8 Also Firman - the "Royal order"
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v.
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
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vest with the Military Governor and that said authority included the
authority to make Regulations as 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, vested in the Military
Governor before the said date are exercisable by the Chief
Minister."
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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.
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:
9 For Short, the 'Abolition Regulation'
10 For Short, the 'Commutation Regulation'
11 AIR 1960 SC 862
STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) v.
A. P. STATE WAKF BOARD [HEMANT GUPTA, J.]
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"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 19-91948, and before the Abolition Regulation was promulgated, the
authority of the Military Governor was withdrawn or that His
Exalted 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
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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.