M/ S. Solithro Private Limited v. The State Of Telangana

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO WRIT PETITION No.33133 of 2014 ORDER:

This Writ Petition has been filed declaring the action of respondent Nos.1 and 5 in publishing A.P.Gazette No.46-A dt.15-11-2001 notifying the list of properties in Narsapur and Siddipet Taluks of Medak District including lands claimed by petitioner in Sy.Nos.136, 137, 227 and 228 of Shabhashpally village, Shivampet Mandal of Medak District vide Sl.No.18333 as Wakf properties. THE BACKGROUND FACTS 2.

The petitioner is a company incorporated under the Companies Act, 1956 on 22-07-2013.

3.

It purchased an extent of Ac.23.08 gts in the above survey numbers in an open auction conducted by the ING Vysya Bank Limited and State Bank of India on 26-12-2013 and 13-08-2014 vide sale certificates dt.07-02-2014 and 16-08-2014 respectively. The said sales were conducted by the said Banks under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 on the ground that M/s.Axis Structurals Private Limited (formerly known as M/s.Axis Engineers) had availed loans from the said Banks and had failed to repay the said loans.

PETITIONER'S CONTENTIONS 4.

Petitioner alleges that this land is an Inam land and forms part of extent Ac.584.28 gts; this land had been in possession and cultivation of 111 persons since several decades through their ancestors ; Smt.Azeez Bee and others filed applications before the 4th respondent claiming to be the inamdars and in possession of the said lands and for issuance of Occupancy Right Certificates under the provisions of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955; the 4th respondent took up the case vide case No.M/1484/96 and issued notices to Badikoli Malla Reddy and others, who were alleged to be in occupation of the said lands and dismissed the claim of Smt.Azeez Bee on 18-12-1998; this was challenged before the Joint Collector, Medak District at Sanga Reddy vide appeal No.

F3/6/Inam/99 and after hearing all the parties, the appeal was also dismissed on 21-06-2001; Smt.Azeez Bee and others then filed W.P.No.6107 of 2003 and on 28-03-2006, the said Writ Petition was also dismissed; and thereafter W.A. (SR) No.63303 of 2006 was filed by Smt.Azeez Bee and others and the Division Bench of this Court dismissed the same for default on 01-09-2006. 5.

Petitioner contends that the 4th respondent then issued Occupancy Right Certificates to all the occupants of the lands and basing on the same, the 5th respondent also issued Pattadar passbooks and title deeds under the A.P. Rights in Land and Pattadar Pass Books Act, 1971.

6.

It alleged that M/s.Axis Engineers purchased under several sale deeds from the ORC holders to an extent of Ac.23.08 gts in the above survey numbers, which they have mortgaged to ING Vysya Bank Limited and State Bank of India and which were transferred to petitioner under sale certificates dt.07-02-2014 and 16-08-2014.

7.

Petitioner alleges that after purchasing the land, it was in possession and enjoyment of the same and intended to establish a unit for manufacture of Bulk Drugs and Intermediates with R& D facility in the said land and is attempting to get Environmental Clearance from the Ministry of Environment, Government of India, New Delhi. 8.

Petitioner alleges that they came to know that 2nd respondent issued the impugned Gazette notification notifying the list of Wakf properties of Narsapur and Siddipet under Section 5(2) of the Wakf Act, 1954, and the land purchased by petitioner under the above sale certificates was also included in that gazette notification at Sl.No.18333 as part of an extent of Ac.552.28 gts in Sy.Nos.126 to 137 etc. and wet land admeasuring Ac.32.00 in Sy.Nos.145 to 149. 9.

Petitioner contends that the Wakf Act, 1995 came into force from 01-01-1996 and under Section 112 of the Wakf Act, 1995, the Wakf Act, 1954 and the Wakf (Amendment) Act, 1984 were both repealed. Petitioner contends that after coming into force of Wakf Act, 1995 from 01-01-1996, the impugned Gazette notification was issued under the Wakf Act, 1954 which had been repealed by the

Wakf Act, 1995. It contended that under Section 4(3) of the Wakf Act, 1995, the Survey Commissioner has to conduct enquiry in respect of Auqaf lands as specified under Section 4(4) of the Act and submit a report to the Government; that Government has to forward the same to the 2nd respondent under Section 5(1) of the Act; and under Section 5(2) of the Act, the 2nd respondent shall examine the report and forward it to the Government within six months for publication in the Gazette. Petitioner alleges that respondent Nos.1 and 2 have not followed this procedure under Wakf Act,1995 before issuing and publishing the Gazette notification and that no enquiry was conducted by the Survey Commissioner as to whether the said lands are Wakf properties or not and no notices were issued to the occupants of the land. It therefore contended that the impugned gazette notification dt.15-11-2001 issued by the 2nd respondent in respect of the lands claimed by petitioner (Sl.No.18333) is arbitrary, illegal and contrary to the Act,1995.

10.

Sri Vedula Venkata Ramana, learned Senior Counsel appearing for petitioner, reiterated the above contentions. He contended that mere conducting survey at the time when Wakf Act, 1954 was in force does not confer any right on the 2nd respondent in the absence of a proper notification under Section 5(2) of the Wakf Act, 1954 declaring the subject property as wakf property and no suit can be laid by the 2nd respondent for recovery of possession of the subject

property on that ground. He placed reliance on Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead) by Lrs. Etc1 in that regard. 11.

He contended that the effect of repealing a statute is to obliterate it as completely as if the said law never existed and the provision of the repealed statute cannot be relied upon after it has been repealed, though what has been acquired under the Repealed Act cannot be disturbed. He placed reliance on the judgment of the Supreme Court in D.C.Bhatia and others Vs. Union of India (UOI) and another2 in this regard. Accordingly, he contended that once the Wakf Act, 1954 was repealed, there could not have been any publication or any notification under that Act after the Wakf Act, 1995 came into operation, and impugned gazette notification would have no legal effect.

He contended that though Section 112 of the Wakf Act, 1995 saves in clause-(2) things done or actions taken under the Wakf Act, 1954, only completed actions would be saved and not inchoate actions. According to him, there was a survey report in 1963 mentioning the properties now published in the gazette as Wakf properties but the same was not published till 01-01-1996 when the Wakf Act, 1954 got repealed and no gazette notification can be issued under the Wakf Act, 1954 and on the basis of the survey report of 1963 after Wakf Act, 1995 has been coming into operation.

report should be submitted to the 1st respondent, which ought to be forwarded to the 2nd respondent under Section 5(1) of the Wakf Act, 1995 leading to a further examination of the report by the 2nd respondent and publication in the gazette, there is a clear contrary intention in the new Act to ignore the Survey report prepared in 1954 Act was in force.

12.

Relying on State of Punjab Vs. Mohar Singh Pratap Singh3, learned Senior Counsel for petitioner contended that if repeal of an enactment is followed by a fresh enactment, the Court would have to look into the provisions of the new Act for the purpose of determining whether they indicate a different intention and the test is not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy them. He thus contended that the consequences of a repeal statute are drastic and except as to transactions past and closed, a statute after its repeal is completely obliterated as if it had never been enacted; and has the effect of destroying all inchoate rights and all causes cause of actions that may have arisen under the repealed statute. He placed reliance on the decision in Atiabari Tea Co.

, Ltd. Vs. The State of Assam And others4 . Relying on Agricultural and Processed Food Products Vs. Oswal Agro Furane Ltd.

provisions cannot be intended to confer any right which did not exist already.

13.

He also relied upon the judgment dt.19-04-2012 of this Court in W.P.No.25076 of 2004 wherein this Court took a view that a gazette notification issued under the Wakf Act, 1954 which was repealed by the Wakf Act, 1995 has no validity since it was issued under the repealed enactment.

CONTENTIONS OF 2ND RESPONDENT/WAKF BOARD 14.

Counter-affidavit has been filed by 2nd respondent refuting the above contentions. The 2nd respondent contended that petitioner is not the owner and possessor of the subject land, that any sale transaction in respect of the subject property is void, and sale certificates issued to petitioners are also void as per Section 51 (1)A of the Wakf Act, 1995 as mended by Act 27 of 2013. It contended that the subject property is Wakf property by virtue of publication dt.15.11.2001 in Andhra Pradesh Gazette No.46-A and issuance of occupancy rights certificates allegedly to occupants of the subject land under the provisions of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 and the subsequent consequential orders or the sale transactions based upon such orders, are void. He contended that the executants of the sale deeds filed by petitioner are not shown as occupiers in the order dt.21.06.2001 of the Joint Collector, Medak, Sangareddy and no document to that effect is filed by petitioner to prove validity of title of petitioner's predecessors. Therefore, it

contended that petitioner's title itself is in cloud and the petitioner is not entitled to maintain the Writ Petition and it has no locus standi to file the Writ Petition.

15.

It is asserted that a Wakf once created continues as such for all times to come and its character cannot be extinguished by any Act and any person including Muthawali or person claiming through him. 16.

It is asserted that a survey was conducted in 1963 and the extent of Acs.584.28 guntas in different survey numbers covered by the impugned notification which were attached to the Wakf Institution Chinna Moula Ali as per Munthakab No.5449 were notified as wakf lands under the impugned Gazette notification dt.15.11.2001 at Serial No.18333.

17.

The 2nd respondent contends that after such survey in 1963, which was done under Section 4(3) of the Wakf Act, 1954, the Survey Commissioner's report was submitted to 1st respondent and the 1st respondent forwarded it to the 2nd respondent under Section 5 (1) of the Act; that the 2nd respondent examined the report and sent list of Wakf properties for publication to the Commissioner of Printing, Publication Bureau, Government Central Press, Chanchalguda, Hyderabad during the years 1989-1991.

18.

It contends that the Commissioner of Wakfs, Government of Andhra Pradesh by letters dt.07.08.1991 and 23.08.1991 called for information from 2nd respondent with regard to the status of

publication of list of Wakf properties in Telangana region which had been transmitted to the 2nd respondent under Section 5 (1) of the Wakf Act, 1954; and the 2nd respondent addressed a letter dt.27.08.

1991 enclosing the list of Wakf properties published in the Andhra Pradesh Gazette pertaining to Telangana region; that though the 2nd respondent forwarded the list of Wakf properties for publication to the Commissioner of Printing, Publication Bureau, Government Central Press, Chanchalguda, Hyderabad during 1989-91 in respect of Telangana region as per sub-Section (2) of Section 5 of the Wakf Act, 1954, due to paucity of funds with the 2nd respondent, out of the list of Wakf properties pertaining to Telangana region, some were published and list of wakf properties in the Districts of Khammam, Nizamabad, Medak and Mahboobnagar were not published.

It contended that 2nd respondent had made several representations to 1st respondent to release the funds and also requested the Commissioner of Printing and Publication Bureau, Government Central Press, to expedite the publication of list of wakf properties; and as and when the Government releases funds, the same will be published by the Printing and Publication Bureau, Government Central Press. 19.

However, it is asserted that since the list of wakf properties pertaining to Telangana region was already sent to the Commissioner of Printing and Publication Bureau, Government Central Press for publication by 1991 itself under sub-Section (2) of Section 5 of the Wakf Act,1954, even if the said list of wakf properties was published

in the impugned Gazette after the repeal of the Wakf Act, 1954 by the Wakf Act, 1995, it is saved by sub-Section (2) of Section 112 of the Wakf Act, 1995. It contends that anything done or action taken under the Wakf Act, 1954 is deemed to have been done or taken under the corresponding provisions of the Wakf Act,1995. It refuted the contention of petitioners that the publication made after the Wakf Act,1995 came into force pertaining to survey taken under the Repealed Act is invalid and is liable to be quashed as one without any merit.

20.

It is contended that there is a presumption that governmental authorities acted in a manner envisaged in the Act and a dispute regarding Wakf property can only be adjudicated by the Tribunal constituted under Section 83 of the said Act. It is contended that petitioner has directly approached this Court under Article 226 of the Constitution of India instead of approaching the Wakf Tribunal, that too, after fourteen years from the date of publication of the Gazette, and therefore, the Writ Petition is liable to be dismissed on the ground of laches and on the ground of existence of alternative remedy. 21.

It is contended that occupancy rights certificates were issued by the Revenue Department in 1998 and by that date the Andhra Pradesh (Telangana Area) Abolition of Inams (Amendment) Act, 1994 had been passed inserting the proviso to Section 4 of the Act with effect from 26.12.1985; that the said proviso stated that if any person other than a charitable or religious institution was registered as

occupant under Sections 5, 6, 7 and 8 after the commencement of the said amendment Act, such registration shall be deemed always to have been null and void and no effect shall be given to such registration; that since the predecessor in title of petitioner did not have any valid title, petitioner did not get any better title and so the Writ Petition should be dismissed. Reference was made in the counter-affidavit to the following judgments, viz., Sayyed Ali v. Andhra Pradesh Wakf Board, Hyderabad6, Cheddi Lal Misra v. Civil Judge, Lucknow7, Gammon India Limited v. Special Chief Secretary and others8 and Board of Wakf, West Bengal and another v. Anis Fatima Begum and another9 22.

Sri S.R.Mahajir, Counsel appearing for the Mirza Saifulla Baig, Advocate for the 2nd respondent reiterated these contentions. He contended that the purposive interpretation of the provisions of the Wakf Act, 1995 has to be done instead of literal interpretation which may lead to absurdity. He contended that it is the duty of the Court to see what rights were preserved by the Savings clause (Sec.112) contained in Wakf Act,1995. According to him, repeal of a statute does not efface a vested right or halt proceedings not concluded prior to the repeal, and in respect of such matters, the repeal has no effect. According to him, the repeal would not affect any investigation, legal proceeding or remedy in respect of any right. He contended that one should be careful in understanding precedents because a precedent is 6 (1998) 2 SCC 642 7 (2007) 4 SCC 632 8 (2006) 3 SCC 354 9 (2010) 14 SCC 588

only an authority what it actually decides. According to him what is of essence is ratio of a decision and not every observation found therein nor what logically follows from the various observations made in it can be termed to be a ratio. He cited the following decisions in State of Orissa (In all the Appeals) v. Sudhansu Sekhar Misra and others10; Lambadi Pedda Bhadru and others v. Mohd. Ali Hussain and others11; Richa Mishra v. State of Chattisgarh and others12; Gajraj Singh etc., v. The State Transport Appellate Tribunal and others etc.13. Devidas R. Bollaki v. State of Telangana, Rep. by its Principal Secretary and others14; State of Uttar Pradesh and others v. Jagdish Chandra15; S. Mallesh, S/o.S. Muttaiah and others v. The Government of A.P. 16. 23.

He has also filed written arguments running into fifteen pages reiterating the contentions referred to above. THE POINTS FOR CONSIDERATION 24.

From the respective contentions of the parties, the following points arise for consideration:

(a) Whether the Writ Petition is liable to be dismissed on the ground of laches ?

(b) Whether the Writ Petition is liable to be dismissed on the ground of existence of alternative remedy ?

10 AIR 1968 SC 647 (1) 11 2003 (4) ALD 673 (DB) 12 2016 1 Supreme 433 13 1997 1 SCC 650 14 2015 5 ALD 183 15 2013 7 ADJ 533 16 2010 2 ALD 739

(c) Whether the impugned Gazette notification dt.15.11.2001 issued by 1st respondent on the basis of a survey conducted by the Commissioner of Survey in 1963 (when the Wakf Act, 1954 is in force), is valid, notwithstanding the enactment of the Wakf Act, 1995 and the repeal by it of the Wakf Act, 1954 ?

(d) Whether sub-Section (2) of Section 112 of the Wakf Act, 1995 would save the impugned notification even after the repeal of the Wakf Act, 1954 ? and (e) Whether the proviso to Section (4) of the Andhra Pradesh (Telangana Area) Abolition of Inams (Amendment) Act, 1994 can be relied upon by the 2nd respondent who claim the subject properties?

Point (a) :

25.

The petitioner had purchased the subject properties in Sy.Nos.136, 137, 227 and 228 of Shabhaspally Village, Shivampet Mandal, Medak District in an auction conducted under the provisions of the SARFAECI Act, 2002 by the State Bank of India and ING Vysya Bank on 26-12-2013 and 13-08-2014 vide Sale Certificates dt.07-02-2014 and 16-08-2014. It applied to the 5th respondent for mutation of its name in the Revenue Record, which was also done on 21-03-2014 and 18-10-2014. Thereafter it came to know about the impugned Gazette Notification No.46-A dt.15-11-2001 notifying certain land including the land purchased by the petitioner as wakf land under Section 5(2) of the Wakf Act, 1954 and then filed the Writ Petition.

26.

Since cause of action accrued to the petitioner to challenge the said Gazette Notification only after it purchased the subject land on 07-02-2014 and 16-08-2014, it cannot be said that the Writ Petition filed challenging the said Gazette Notification on 05-11-2014 is barred by laches. Therefore this point is held against the 2nd respondent and in favour of the petitioner.

Point (b):

27.

According to the 2nd respondent, the question whether the property purchased by the petitioner is a wakf property or not, is a matter to be decided by the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 under Section 6 of the Act. According to the 2nd respondent, if any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not, any person interested therein may institute a suit in the Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final. It therefore contended that the Writ Petition should be dismissed directing petitioner to approach the wakf Tribunal.

28.

In A.P. State Wakf Board, Hyderabad Vs. Mavuru Sundaramma and another17, the Division Bench considered the question whether existence of a notification under Section 4(1) of the Wakf Act, 1995 after conducting a regular Survey notifying certain properties as wakf properties, is binding on third parties who are not 17 2007(5) ALD 267 (DB)

in any connected with the wakf and whether failure of such third parties to file a suit as per proviso to sub-Section (1) of Section 6 of the Act within one year from the date of publication of the list of wakfs is a bar to challenge the claim of the Wakf Board as owner of the property. The Division Bench relying on the judgments of the Supreme Court in Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan and others18 and Punjab Wakf Board Vs. Gram Panchayat19, held that failure of a stranger to a wakf to file a suit within a period of limitation, does not make the list of wakfs binding on him and the said proviso is not applicable to a stranger to the wakf, though interested in the wakf property.

29.

The only basis for claim by 2nd respondent that the subject properties claimed by the petitioner are wakf properties is the survey conducted in 1963 by the Survey Commissioner under Section 4(3) of the Wakf Act, 1954 on the basis of which the impugned Gazette Notification No.46-A was issued on 15-11-2001 by the then composite State of Andhra Pradesh.

30.

When the validity of such a notification issued under Section 5(2) of the Wakf Act, 1954 is questioned by the petitioner under Article 226 of the Constitution of India on the ground that such a notification, cannot be issued after the repeal of the Wakf Act, 1954 by the Wakf Act, 1995, it cannot be said that this Court cannot entertain the Writ Petition. It is not as if any disputed questions of 18 (1979) 2 SCC 468 19 AIR 2000 SC 3488

fact are being raised in the Writ Petition which require oral and documentary evidence which can be taken by the Tribunal only. 31.

It is settled law that existence of an alternative remedy is not an absolute bar to exercise of jurisdiction under Article 226 of the Constitution of India. The rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion. 32.

In Commissioner of Income Tax Vs. Chhabil Dass Agarwal20, the Supreme Court held that if there is breach of natural justice or procedure required for decision has not been adopted, alternative remedy is not a bar. It also observed that when a statutory authority has not acted in accordance with the provisions of enactment in question, in defiance of fundamental principles of judicial procedure, or has resorted to invoke provisions which are repealed, then notwithstanding existence of alternative remedy, the High Court under Article 226 of the Constitution of India can entertain the Writ Petition and grant relief.

33.

The specific contention of the petitioner is that the respondent No.1 has issued the impugned Gazette Notification resorting to provisions of the Wakf Act, 1954 which has been repealed by the Wakf Act, 1995.

34.

Therefore undoubtedly, the petitioner can maintain the Writ Petition in this Court invoking Article 226 of the Constitution of India and the existence of alternative remedy under the Wakf Act, 1995 is 20 (2014) 1 SCC 603

not a bar. This point is answered accordingly in favour of the petitioner and against the 2nd respondent.

Point (c) and (d) :

35.

The impugned Gazette Notification No.46-A dt.15-11-2001 issued by 1st respondent states :

"List of Wakf Properties (Registered and Unregistered) in Narsapur and Siddipet Taluks of Medak District of Telangana Region Surveyed under Section 4(3) of the Wakf Act, 1954 and published under Section 5(2) of Ibid"

36.

Thus, the impugned Gazette Notification is issued on 15-11-2001 under the provisions of the Wakf Act, 1954 which has been repealed by the Wakf Act, 1995.

37.

Section 112 of the Wakf Act, 1995 states:

"112. Repeal and savings:- (1) The Wakf Act, 1954 (29 of 1954) and the Wakf (Amendment) Act, 1984 (69 of 1984) are hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act. (3) If, immediately before the commencement of this Act, in any State, there is in force in that Stage, any law which corresponds to this Act that corresponding law shall stand repealed. Provided that such repeal shall not affect the previous operation of that corresponding law, and such thereto, anything done or any action taken in the exercise of any power conferred by or under the corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or under this At as if this Act was

in force on the day on which such things were done or action was taken."

38.

In D.C. Bhatia (2 supra), the Supreme Court held that provisions of a repealed statute cannot be relied upon after it has been repealed. It held that the effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed; and, it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law. It observed that what has been acquired under the Repealed Act cannot be disturbed but if any new or further step is needed to be taken under the Act, that cannot be taken even after the Act is repealed. Similar view has been expressed in Mohan Raj v. Dimbeswari Saikia and another21.

39.

Section 112 of the Wakf Act, 1995 is in the nature of a repeal and savings provision. In Agricultural and Processed Food Products (5 supra), the Supreme Court explained that a saving provision clause merely preserves what exists. It quoted "Statutory Interpretation" by F.A.R. Bennion, Second Edition, at pages 494 and

495. The learned author, with regard to saving clause, has said that "A saving is a provision the intention of which is to narrow the effect of the enactments to which it refers so as to preserve some existing legal rule or right from its operation. A saving resembles a proviso, except that it has no particular form. Furthermore it relates to an 21 AIR 2007 SC 232

existing legal rule or right, whereas a proviso is usually concerned with limiting the new provision made by the section to which it is attached. Again at pages 494 and 495 it is stated "A saving is taken not to be intended to confer any right which did not exist already". The Supreme Court said that this was the view taken by it in Shah Bhojrai Kurveki Oil Mills and Ginning Factory V. Subbash Chandra Yograj Singh22.

40.

We have already noticed Section 112 of the Wakf Act, 1995. Sub section (2) thereof states that notwithstanding repeal of the Wakf Act, 1954, anything done or any action taken under the said Act shall be deemed to have been done or taken under the corresponding provisions of the Wakf Act, 1995.

41.

The counsel for the 2nd respondent contended that the survey was done by the Survey Commissioner under the Wakf Act, 1954 in 1963, that the survey report was submitted to the Government, it forwarded the same to the 2nd respondent under Section 5 (1) of the Wakf Act, 1954, the 2nd respondent examined the same and sent the list of Wakf properties for publication to the Commissioner of Printing and Publication Bureau, Government Central Press, Chanchalguda, Hyderabad during the years 1989 to 1991. He contended that due to paucity of funds with the 2nd respondent, the publication in the AP Gazette could not be made as mandated by Wakf Act, 1954 before its repeal and it came to be done only on 1522 AIR 1961 SC 1596

11-2001 after its repeal by the Wakf Act, 1995. So he contends that that survey would survive the repeal of the Wakf Act, 1954 and shall be deemed to have been done or taken under Section 4 of the Wakf Act, 1995.

42.

However, there is no dispute that the impugned Gazette Notification is issued on the basis of the survey report of the Survey Commissioner conducted in 1963 and the same was published in the impugned Gazette Notification dt.15-11-2001 not under Section 5 (2) of the Wakf Act, 1995 but under Section 5 (2) of the Wakf Act, 1954. 43.

In view of this, the counsel for the petitioner contends that no publication in Gazette having taken place during the period when the Wakf Act, 1954 was in force, any survey done in 1963, would stand obliterated. According to him, only if there had been a publication in the Gazette of the list of properties pursuant to the survey report of the Survey Commissioner prepared in 1963 when the Wakf Act, 1954 was in operation, there would be a completed action which would be saved under sub Section (2) of Section 112 of the Wakf Act, 1995 and not otherwise.

44.

According to him, mere survey report does not confer any right on the 2nd respondent unless it was acted upon during the period when the Wakf Act, 1954 was in force; and it would be only an inchoate action which is not saved by sub Section (2) of Section 112 of the Wakf Act, 1995. He contends that the Savings Clause would preserve

only actions taken or done under the Repealed Act and not other actions which are inchoate or incomplete.

45.

In view of the rival submissions, it is first necessary to consider whether the conduct of survey by a Survey Commissioner during the time when the Wakf Act, 1954 was in force, without publication of the same in the Gazette under sub Section (2) of Section 5 of the said Act, conferred any right on the 2nd respondent or not. If the answer is 'yes', then such right is saved under sub Section (2) of Section 112 and not otherwise.

46.

This issue was considered in Tamilnadu Wakf Board ( 1 supra). In that case also a survey was made by the Survey Commissioner constituted under the Wakf Act, 1954 determining that a particular property is wakf property, but no Gazette Notification had been issued under sub Section (2) of Section 5 of the Act. Suits were filed by the appellant before the Supreme Court for recovery of properties, future mesne profits and costs. The trial Court held that though the property in question is a public wakf, the notification dt.24.12.1958 issued under Sec.5(2) of the Act did not include it and so the appellant cannot recover possession of the property. This was affirmed in First Appeal. The First Appellate Court held that in the absence of proper notification under sub Section (2) of Section 5 of the Act that the suit properties are wakf properties, the appellant cannot succeed in the suit for recovery of possession. The High Court affirmed the same in the Second Appeal. The Supreme Court held

that if any property is not published as wakf property as required under Section 5 (2) of the Act, the Wakf Board cannot file a suit for declaration and possession. It observed that if any property has been omitted from a notification, the Wakf Board may itself collect information regarding any property as provided under Section 27 of the Wakf Act, 1954 and decide whether particular property is wakf property or not and that decision is final unless it is revoked or modified by a Civil Court, but this course of action had also not been adopted by the Wakf Board in that case. It held that before filing the suit for recovery of possession as provided in law, the Wakf Board should have followed the procedure as required under Sections 4, 5 and 6 or 27 of the Wakf Act, 1954.

If the suit properties are not included in the notification published under sub Section (2) of Section 5 of the Act, steps should have been taken as provided under Section 27 of the Act and only thereafter a suit for possession could have been filed and not otherwise. It therefore affirmed the decisions of the Courts below.

47.

The ratio of this decision is that in the absence of proper notification under sub Section (2) of Section 5 of the Wakf Act, 1954 that the properties in question are wakf properties, even if there is any survey report of a Survey Commissioner, the said report is of no avail and does not impress the property with the character of a wakf property.

48.

In view of this decision, I reject the contention of the 2nd respondent that the survey report of the Survey Commissioner prepared in 1963 under the Wakf Act, 1954 is a completed action which is deemed to have been saved under the deeming clause in sub Section (2) of Section 112 of the Wakf Act, 1995. It is clearly an inchoate act and not a complete act and cannot be treated as something "done" or action "taken" under the Wakf Act, 1954. It would have been complete only or treated as something "done" or action "taken", only if there had been a Gazette Notification under sub Section (2) of Section 5 of the Wakf Act, 1954. 49.

Consequently the principle laid down in D.C.Bhatia (2 supra) would apply i.e. that provisions of a repealed statute cannot be relied upon after it has been repealed and though what has been acquired under the Repealed Act cannot be disturbed, if any further step is needed to be taken under the Act (such as publication of Gazette Notification under sub Section (2) of Section 5 of the Wakf Act, 1954), that cannot be taken after the Wakf Act, 1954 is repealed by the Wakf Act, 1995.

50.

I am also of the opinion that the various decisions cited by the counsel for the respondents are not directly on point unlike the decision in Tamil Nadu Wakf Board ( 1 supra) and no useful purpose served by discussing the same since the decision in Tamil Nadu Wakf Board ( 1 supra) is directly on the point and is binding on this Court.

51.

Therefore I hold on point (c) and point (d) that sub-Section (2) of Section 112 of the Wakf Act, 1995 would not save the impugned notification from being declared as invalid.

Point (e):- 52.

Second Proviso to sub Section (1) of Section 4 of the AP (Telangana Area) Abolition of Inams Act, 1955 no doubt states that if any person other than charitable or religious institutions has been registered as an occupant under Sections 5 to 8 after the commencement of the AP (Telangana Area) Abolition of Inams (Amendment) Act, 1985, such registration shall and shall be deemed always to have been null and void and no effect shall be given to such registration. This proviso was introduced by AP Act 19 of 1994 with effect from 26-12-1985.

53.

According to the petitioner, Smt. Aziz Bee and others claiming to be inamdars filed an application on 30-10-1996 before the Revenue Divisional Officer, Medak claiming Occupancy Right Certificate under the provisions of the said Act which was contested by Sri Badikoli Mallareddy and 107 others and the said claim was rejected on 18-12-1998 in proceedings No.M/1484/96 by the Revenue Divisional Officer, Medak. This was confirmed in Case No.F3/6/Inam/99 dt.21-06-2001 by the Joint Collector, Medak at Sangareddy and it was held therein that the predecessors in title of the petitioner were in possession of the land. This was confirmed by order dt.28-02-2006 in W.P.No.6107 of 2003 by this Court and

W.A.S.R.No.63303 of 2006 filed against the said decision was dismissed for default on 01-09-2006.

54.

According to the petitioner, the predecessors in title of the petitioner were granted Occupancy Right Certificates under the AP (Telangana Area) Abolition of Inams Act, 1955 on the basis of the order dt.21-06-2001 in Case No.F3/6/Inam/99 of the Joint Collector, Medak at Sangareddy and pattedar pass books and title deeds had also been given to them.

55.

Thus the order dt.21-06-2001 in Case No.F3/6/Inam/99 of the Joint Collector, Medak at Sangareddy was passed prior in point of time to the issuance of the impugned Gazette Notification on 15-11-2001.

56.

No doubt second Proviso to Section 4 was introduced by AP Act 19 of 1994 with effect from 26-12-1985. For this to operate in respect of the subject land, a valid Gazette Notification must already have been issued under sub Section (2) of Section 5 of the Wakf Act, 1954 or sub Section (2) of Section 5 of the Wakf Act, 1995. Only then it would be impressed with the character of "wakf property" as held in the Tamil Nadu Wakf Board's case ( 1 supra) referred to above.

57.

It is not the case of the 2nd respondent that the property in question became wakf property on account of permanent dedication by any person professing Islam. The sole basis of the claim of the 2nd

respondent that subject property is wakf property is that it was included in the Survey report of the Survey Commissioner prepared in 1963 under the Wakf Act,1954.

58.

Therefore it is not possible to accept the contention of 2nd respondent that in view of the second proviso to Section 4 of the AP (Telangana Area) Abolition of Inams Act, 1955, the Occupancy Right Certificates issued to the predecessors in title of the petitioner are null and void and cannot be acted upon. Therefore point (e) is answered against the 2nd respondent and in favour of the petitioner. THE RESULT:

59.

For the aforesaid reasons, the Writ petition is allowed and the action of respondent no.s 1-5 in publishing the Gazette 46-A dt.15.11.2001 notifying the list of properties of the 2nd respondent in Narsapur and Siddipet Taluqs of Medak District including lands of the petitioners in Sy.No.136,137,227 and 228 of Shabashpally Village, Shivampet Mandal, Medak District vide Sl.No.18333 is declared as contrary to law and is set aside. No costs.

60.

As a sequel, the miscellaneous petitions, if any pending, shall stand closed.

__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 22-09-2016 Vsv/Ndr/kvr