IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

****

WRIT PETITION NO: 42457/2017

VALLURU SIVA PRASAD, S/O. LATE VALIUM BABU RAO,,

OCC: BUSINESS, R/O. D.NO. 8 -3-276, 8TH LANE,

BUCHAIAH THOTA, GUNTUR CITY, GUNTUR DISTRICT.

… PETITIONER

Versus

THE DISTRICT REGISTRAR REGISTRATION STAMPS

GUNTUR, GUNTUR CITY, GUNTUR DISTRICT. (FOR

REGISTRATION OF ALIENATION DEEDS) AND OTHERS

… RESPONDENTS

DATE OF ORDER PRONOUNCED : 06.05.2025

SUBMITTED FOR APPROVAL :

HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

1. Whether Reporters of Local Newspapers

may be allowed to see the order? : Yes/No

2. Whether the copy of order may be

marked to Law Reporters/Journals? : Yes/No

3. Whether His Lordship wish to

see the fair copy of the order? : Yes/No

_____________________

SUBBA REDDY SATTI, J

Page 2 of 28 SRS,J

W.P.No.42457 of 2017

* HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

WRIT PETITION NO: 42457 / 2017

% 06.05.2025

Writ Petition No. 42457 OF 2017

VALLURU SIVA PRASAD, S/O. LATE VALIUM BABU RAO,,

OCC: BUSINESS, R/O. D.NO. 8 -3-276, 8TH LANE,

BUCHAIAH THOTA, GUNTUR CITY, GUNTUR DISTRICT.

… PETITIONER

Versus

THE DISTRICT REGISTRAR REGISTRATION STAMPS

GUNTUR, GUNTUR CITY, GUNTUR DISTRICT. (FOR

REGISTRATION OF ALIENATION DEEDS) AND OTHERS

… RESPONDENTS

! Counsel for Petitioner s : Sri K. Sridhar

^ Counsel for Respondents : GP for Assignment; GP for Revenue,

Sri Khaja Basha,

Standing counsel

< Gist:

> Head Note:

? Cases referred:

1) 2024 Supreme (AP) 1069

2) AIR 1968 SC 1196

3) (2019) 13 SCC 42

4) (2003) 10 SCC 578

5) (2007) 8 SCC15

6) AIR 1953 SC 65

7) 2004 SCC OnLine Bom 204

8) (2014) 4 SCC 434

9) (2022) 7 SCC 508

10) 2016 (2) ALD 236

11) 2001 (1) SCC 582

12) AIR 1974 SC 130

This Court made the following:

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W.P.No.42457 of 2017

APHC010961372017

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3331]

TUESDAY, THE SIXTH DAY OF MAY

TWO THOUSAND AND TWENTY FIVE

PRESENT

THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

WRIT PETITION NO: 42457 /2017

Between:

Valluri Siva Prasad ...PETITIONER(S)

AND

The State Of Andhra Pradesh Rep By Its Principal

Secretary and Others

...RESPONDENT(S)

Counsel for the Petitioner(S):

1. K. SRIDHAR

Counsel for the Respondent(S):

1. GP FOR ASSIGNMENT (AP)

2. GP FOR REVENUE (AP)

3. SHAIK KHAJA BASHA

The Court made the following:

::ORDER::

Impugning the proceedings issued by respondent No.3 vide

proceedings in Rc.No.1104/2005/E4 dated 29.10.2007 to respondent No.1, to

prohibit the registration of documents relating to transfer of property of an

Page 4 of 28 SRS,J

W.P.No.42457 of 2017

extent of Ac.11-38 cents in survey No.508 and an extent of Ac.4-00 cents in

survey No.509, in pursuance of the list published by respondent No.2, under

Gazette Serial No.874 dated 28.06.1962, the above writ petition is filed.

2. The averments, in brief, in the affidavit, are that the petitioner owns the

property admeasuring 313.3 square yards in D.No.508 of Vasavi Nagar,

Guntur. The land of an extent of Ac. 2-00 cets, in survey No.508 belonged to

Sri Ch. Suryanarayana, who purchased the same under a registered

document bearing No.2852/1946 dated 16.10.1946. After Sri Suryanarayana's

lifetime, his wife Manikyamma enjoyed the property and later gifted it to her

daughter Ch. Padmavathi vide registered gift deed dated 04.06.1964. Smt.

Padmavathi, converted Ac.2-00 cts into house plots and sold to different

individuals, after obtaining permission from Urban Land Ceiling (ULC)

authorities.

b) The Andhra Pradesh State Wakf Board (respondent No.2) filed

suit O.S.No.129 of 1967 against Smt. Cherukuri Manikyamma and others for

recovery of possession of the property in survey Nos.508 (Ac.2-00 cts) and

509 (Ac.4-00 Cts). The said suit was dismissed by the Sub-ordinate Judge,

Guntur, on 30.11.1972. Against the said judgment, plaintiff/respondent No.2

filed an appeal A.S. No.164 of 1972, and the defendant No.5, (R4 in appeal)

filed cross objections on the file of the II Additional District Judge, Guntur. The

first appellate Court dismissed the appeal in respect of item No.1 of the suit

schedule property i.e. Ac.2-00 cts in S.No. 508 and allowed the appeal in

respect of item No.2 i.e. land in S.No. 509. Respondent No.3 in the appeal

(defendant No.3 in the suit) filed S.A.No.294/1978, and the same was allowed

on 18.08.1980. Thereby, the suit filed by the plaintiff for recovery of

possession was dismissed in toto.

c) Despite the judgment and decree in O.S.No.129 of 1967,

respondent No.3, by the proceedings impugned instructed respondent No.1 to

prohibit registration of documents, relating to transfer of property of an extent

of Ac.11-38 cents in survey No.508, Vasavi Nagar, Guntur District,

Page 5 of 28 SRS,J

W.P.No.42457 of 2017

which includes the petitioner’s plot in an extent of Ac.2-00, is Wakf property.

Hence, the writ petition.

3. A counter affidavit was filed on behalf of respondent No.2. It was

contended, inter alia, that a writ petition, challenging the list of Wakf property

published in the notification under Section 5(2) of the Wakf Act, 1954, is not

maintainable. The registered document of the year, 1946 does not provide

details about the vendor of late Ch. Suryanarayana, and said Ch.

Suryanarana has no title to the property.

b) The Andhra Pradesh State Wakf Board filed O.S.No.129 of 1967

against five defendants in respect of two items. Item No.1 comprises Ac.2-00

in survey No.508, and Item No.2 comprises Ac.2-00 in survey No.509. A small

portion of the property was the subject matter of the suit. The plaint schedule

property, along with the other property, is Wakf property as per the Andhra

Pradesh Gazette Part-II dated 28.06.1962, and it was granted for the service

of Nirkhi. The plaint schedule properties were illegally and unauthorizedly

alienated by defendant No.4 in favour of defendants 1 to 3.

c) After the death of defendant No.4, his son came on record as

defendant No.5 and filed a written statement on behalf of Muthavali and

pleaded that the alienations made by his father are not valid. The judgment

and decree arising out of O.S.No.129 of 1967 would apply only insofar as

items 1 and 2 of the plaint schedule properties are concerned. The Gazette

notification was not dealt with by the Civil Court. The mere finding given by the

Civil Court will not take away the right or title of the Andhra Pradesh State

Wakf Board over the property. The State Government issued a gazette

notification on 28.06.1962, notifying the list of properties as Wakf properties,

and the notification is subsisting. No objections were raised to the notification

either at the time of the survey or before publication. Therefore, the inclusion

of notified properties in the list of prohibited properties under Section

22(A)(1)(C) of the Registration Act, 1908, is valid. The petitioners, without

Page 6 of 28 SRS,J

W.P.No.42457 of 2017

approaching the Tribunal, filed the above writ petition. Eventually, prayed to

dismiss the writ petition.

4. The petitioners filed an interlocutory application to direct respondents 1,

4 and 5, to received, register and release conveyance deeds in respect of the

subject property. By order dated 20.12.2017, an interim order was granted.

5. Learned counsel for the petitioner would contend that the suit filed by

the Andhra Pradesh State Wakf Board for recovery of possession of the

property was dismissed in respect of Ac.2-00 cents each in survey Nos.508

and 509 in Vasavi Nagar, Guntur District. Against the said judgment and

decree, the plaintiff filed an appeal, and the first appellate Court partly allowed

the appeal in respect of land in survey No.509. The second appeal filed by

defendant No.4 in the suit, regarding the land in Survey No.509, was allowed,

and thereby the suit was dismissed in toto. He would also submit that even

after suffering a decree in the suit for recovery of possession of Ac.2-00 each

in survey Nos.508 and 509, from a competent civil court, issuance of the

proceedings impugned in the writ petition is not only illegal but also arbitrary.

He would also submit that the decree passed by the civil court binds

respondents.

6. Per contra, learned standing counsel would contend that Ac.11-38 cents

in survey No.508, and Ac.8-22 cents in survey No.509 were gazetted as Wakf

land by notification dated 28.06.1962. The petitioner ought to have challenged

the gazette notification. The mere finding of the civil court does not take away

the right of the Wakf Board over the property. The list was communicated by

respondents 2 and 3 in compliance with the orders in W.A.No.343 of 2015 and

batch (reported in 2016 (1) ALT 550) and a Governme nt Memo

No.179064/IDM/A1/2015 dated 08.03.2016.

7. The points for consideration are:

1. Whether the proceedings impugned in the writ petition, despite the

Civil Court decree, are legally sustainable?

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W.P.No.42457 of 2017

2. Whether the writ petition filed by the petitioner is maintainable?

8. Before delving into the matter, let the Court examine the Civil

litigation between the Wakf Board and the predecessor in title, of the

petitioner. The Andhra Pradesh State Waqf Board, (herein after referred

to as ‘Waqf Board’) represented by its Regional Officer, filed suit O.S.No.

129 of 1967 on the file of the Subordinate Judge Court, Guntur, against

Ch. Manikyamma and four others for recovery of property, future profits

etc., In the plaint, it was contended, inter alia, that the suit schedule

property, along with other properties, was granted for the service of Nikhri

(for calling Muslims daily for reading Namaj) in Guntur town. The Waqf

Board, Hyderabad, declared the suit property as Waqf property as per

the notification in Andhra Pradesh Gazette, Part-II, dated 28.06.1962,

and the same became final. The defendants 1, 2, 3 have been in illegal

possession of the plaint schedule properties, in view of the alienations

made by defendant No.4, on 16.07.1964. Defendant No.4 did not obtain

a sanction from the competent authority to alienate the suit property. The

defendants, including the predecessor in title of the petitioner, contested

this suit.

9. The Trial Court framed eight issues. The relevant issues are:

1. Whether the suit schedule property is waqf property?

2. Whether the suit is barred by limitation?

3. Whether the declaration alleged to have been made by the waqf board is

true, valid and binding on the dependents

4. Whether the suit properties were granted for the services of Nikhri as

alleged in the plaint and if so, do they constitute trust property?

5. Whether the suit alienations are valid and binding on the plaintiff?

6. Whether the defendants perfected their title by way of adverse

possession.

Page 8 of 28 SRS,J

W.P.No.42457 of 2017

10. During the trial, on behalf of the plaintiff, the work inspector was

examined as PW1 and exhibits A1 to A10 were marked. On behalf of the

defendants, DW1 to DW4 were examined and exhibits B1 to B11 were

marked. The survey report relating to the suit property, the Gazette

Notification regarding the properties and the Gazette Notification forming the

Waqf Board were marked as Exs. A2 to A4. The registered sale deeds

executed by defendant No. 4 in favour of DW1 and others were marked as

Exhibit B1. Defendant No.4 purchased Ac.2-00 cts in survey No. 508 vide Ex

B5 dated 03.07.1920 and later sold to the husband of D.W1.

11. The Trial Court concluded that the suit schedule property is a Waqf

property; however, Ex.A3 Gazette Notification does not bind defendants 1

to 3. The Trial court also concluded that the defendants perfected the title by

adverse possession and eventually dismissed the suit.

12. The plaintiff in the suit (Wakf Board) filed an appeal, A.S.No. 164 of

1973 on the file of II Additional District Judge, Guntur. The first Appellate

Court recorded a finding that item No.1 of the plaint schedule property (Ac. 2-

00 cts in S.No. 508) purchased by the husband of the first defendant in the

suit, is not a Waqf property. Defendant No. 4 purchased the said extent under

a registered sale deed, Ex. B5 dated 03.07.1920, and hence, the said property

lost the character of Waqf. In respect of item No.2 (S.No. 509), the Appellate

Court reversed the finding of the trial court. Accordingly, the judgment was

rendered on 31.10.1977.

13. Defendant No.3 in the suit filed a Second Appeal, S.A. No. 224 of 1978.

The second appeal was allowed by judgment and decree dated 18.08.1980.

Since the second appeal was allowed, the suit filed by the Waqf Board was

dismissed in toto.

14. It is pertinent to mention here that the First Appellate Court recorded a

finding that item No.1 of the plaint schedule property was purchased by

defendant No.4 under a registered sale deed Ex.B5 dated 03.07.1920

Page 9 of 28 SRS,J

W.P.No.42457 of 2017

from one of his family members and therefore, it became the personal

property of defendant No.4 and hence, the plaintiff's claim in respect of that

item was rejected. (emphasis is mine)

15. Thus, a perusal of the findings recorded by the competent civil court

would bespeak that an extent of Ac.2-00 cts in survey number 508, initially

purchased by defendant No.4 in the suit, on 03.07.1920, and thereafter, he

sold the same to the husband of defendant No.1 in the suit, on 16.07.1946

and it is not Wakf property.

16. In the writ affidavit, it was pleaded about the division of the property into

plots by the owner and the purchase of the plots by the petitioner and others.

17. The Trial Court, indeed, recorded a finding while dealing with issues 1

and 3 that the Gazette notification EX.A3 doesn't bind the defendants 1 to 3

and it became final.

18. Thus, the Waqf Board, being a party to the suit, is aware of the findings

in Civil Suit, in respect of the property Ac.2-00 cts in S.No. 508 of Guntur.

Having suffered a decree, whether it is appropriate, on the part of the Waqf

Board, respondent No.2, or its officers to communicate to respondent No.3 to

include Ac.2-00 cts in survey number 508 of Guntur in the list of prohibited

properties, (S.No. 508 total Ac. 11-38 cts including Ac.2-00 cts), the answer

should be an emphatic ‘No’.

19. In the counter-affidavit filed, on behalf of the second respondent in para

5, it was contended that "the judgment and decree arising out of O.S.No.129

of 1967 would apply only insofar as Items No.1 and 2 of the plaint schedule

properties, and that only in respect of Ac. 2.00 cts of land in Survey No.508

and Ac.2-00 cts of land in Survey No. 509". Having pleaded so, again it was

pleaded that the Gazette Notification published in favour of Waqf Institution

and Waqf Board, is in force and the Civil Court neither discussed nor

addressed it; in fact, it is contrary to the finding recorded by the Civil Court.

The findings recorded in the suit bind the parties to the suit, hence, the

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W.P.No.42457 of 2017

findings bind respondent No.2. The plot purchased by the petitioner is part of

Item No.1 of the suit schedule property in survey No. 508 of Guntur. The

inconsistent pleas in the counter speak for themselves.

20. Whether the judgment and decree in the civil suit of a competent

civil court operate as res judicata?

21. The answer to the point is affirmative. The judgment and decree in

O.S.No.129 of 1967 on the file of Subordinate Judge, Guntur, eventually

confirmed in second appeal, to which the Board is a party, operates as res

judicata.

22. This Court in Y.Nagasubbamma Vs State of Andhra Pradesh

1

considered the applicability of the principle of ‘Res Judicata’ to the writ

petitions and concluded that Section 11 CPC would apply to the writ petitions.

It was held thus:

9. Finality of judgment puts an end to the judicial process. The doctrine

of res judicata is based on three Roman maxims:

(1) “Nemo debet bis vexari pro una et eadem causa” (no man should be

vexed twice for the same cause).

(2) “Interest republicaeut sit finislitium” (it is in the interest of the State

that there should be an end to a litigation).

(3) “Re judicata pro veritateoccipitur” (judicial decision must be accepted

as correct).

10. In Virudhunagar Steel Rolling Mills Ltd. Vs. Government of Madras,

2

the Constitution Bench of the Apex Court held that res judicata will apply

in writ petitions also. As per Section 11 of Civil Procedure Code, 1908,

when the matter has been directly and substantially in issue in a former

Page 4 of 11 suit between the same parties, or between parties under

whom they or any of them claim, litigating under the same title, the

1

2024 Supreme (AP) 1069

2

AIR 1968 SC 1196

Page 11 of 28 SRS,J

W.P.No.42457 of 2017

decree in former suit would be res judicata between the plaintiff and

defendant or between the co-plaintiff and co-defendant.

23. In P. Bandopadhya Vs. Union of India,

3

the Hon’ble Apex Court held

thus:

“8.11. The decision in S.V. Vasaikar v. Union of India, 2003 SCC

Online Bom 171 : (2003) 2 Mah. L.J. 691 : (2003) 4 Bom. C.R. 79 was not

challenged before the Supreme Court, and has since attained finality.

Therefore, the relief sought by the appellants before the High Court was

barred by the principle of res judicata.

Reference can be made to the decision of the Constitution Bench in

Direct Recruit Class-II Engg. Officers' Assn. Vs. State of Maharashtra,

(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : AIR 1990 SC 1607 wherein

Sharma, J., on behalf of the five-Judge Bench, held: (SCC pp. 740-741,

Para 35)

“35.........It is well established that the principles of res judicata are

applicable to writ petitions. The relief prayed for on behalf of the petitioner

in the present case is the same as he would have, in the event of his

success, obtained in the earlier writ petition before the High Court. The

petitioner in reply contended that since the special leave petition before

this Court was dismissed in limine without giving any reason, the order

cannot be relied upon for a plea of res judicata. The answer is that it is not

the order of this Court dismissing the special leave petition which is being

relied upon; the plea of res judicata has been pressed on the basis of the

High Court's judgment which became final after the dismissal of the

special leave petition. In similar situation a Constitution Bench of this

Court in Daryao v. State of U.P. (1962) 1 SCR 574 : AIR 1961 SC 1457

held that where the High Court dismisses a writ petition under Article 226

of the Constitution after hearing the matter on the merits, a subsequent

petition in the Supreme Court under Article 32 on the same facts and for

the same reliefs filed by the same parties will be barred by the general

3

(2019) 13 SCC 42

Page 12 of 28 SRS,J

W.P.No.42457 of 2017

principle of res judicata. The binding character of judgments of courts of

competent jurisdiction is in essence a part of the rule of law on which the

administration of justice, so much emphasised by the Constitution, is

founded and a judgment of the High Court under Article 226 passed after

a hearing on the merits must bind the parties till set aside in appeal as

provided by the Constitution and cannot be permitted to be circumvented

by a petition under Article 32.”

Albeit the decision of the Constitution Bench was in the context of a

writ petition filed under Article 32, it would apply with greater force to bar a

Page 5 of 11 writ petition filed under Article 226, like the one filed by the

present appellants, by the operation of the principle of res judicata.

24. The Hon’ble Apex Court in K.Ethirajanv. Lakshmi

4

held that:

“20. The argument that the principle of res judicata cannot apply

because in the previous suit only a part of the property was involved when

in the subsequent suit the whole property is the subject-matter, cannot be

accepted. The principle of res judicata under Section 11 of the Code of

Civil Procedure is attracted where issues directly and substantially

involved between the same parties in the previous and subsequent suit

are the same, maybe, in the previous suit only a part of the property was

involved when in the subsequent suit, the whole property is the subject-

matter.also considered the applicability res judicata.

25. In Sarojav Chinnusamy (dead) by LRs. and another

5

the Hon’ble

Apex Court held as follows:

In this connection, reference can be made to a decision of the

Madras High Court in Arukkani Ammal v. Guruswamy which was also

relied on by the first appellate court. The Madras High Court in that

decision observed as follows: (LW p. 708, para 1)

4

(2003) 10 SCC 578),

5

(2007) 8 SCC 15.

Page 13 of 28 SRS,J

W.P.No.42457 of 2017

“It is also difficult to appreciate the view taken by the District Munsif

that ex parte decree cannot be considered to be ‘full decree on merits’. A

decree which is passed ex parte is as good and effective as a decree

passed after contest. Before the ex parte decree is passed, the court has

to hold that the averments in the plaint and the claim in the suit have been

proved. It is, therefore, difficult to endorse the observation made by the

Principal District Munsif that such a decree cannot be considered to be a

decree passed on merits. It is undoubtedly a decree which is passed

without contest; but it is only after the merits of the claim of the plaintiff

have been proved to the satisfaction of the trial court, that an occasion to

pass an ex parte decree can arise.” (emphasis supplied)

16. We are in full agreement with this view of the Madras High

Court holding that a decree which is passed ex parte is as good and

effective as a decree passed after contest. A similar view has also been

expressed by a Division Bench of the Allahabad High Court in

BramhanandRai v. Dy. Director of Consolidation.”

26. Thus, a conspectus of the above expressions, even an ex parte decree,

would operate as res judicata. Even if the earlier decision is wrong, it still

operates as res judicata.

27. In Mohan Lal Goenka v. Benoy Krishna Mukherjee

6

the Apex Court

categorically held that the correctness or otherwise of a decision has no

bearing on the question whether or not it operates as res judicata.

28. A Division Bench of Bombay High Court in Sanjay G. Khemuka (Dr.) v.

State of Maharashtra

7

, by relying upon Mohan Lal Goenka case (Supra)

observed as follows:

39. At this stage, we want to express that it is not-necessary that

the decision rendered by the Competent Court should be legally sound

and sustainable in law. Even the erroneous orders or decisions in the

earlier case or proceedings operate as res judicata. The Apex Court laid

6

( AIR 1953 SC 65),

7

2004 SCC OnLine Bom 204

Page 14 of 28 SRS,J

W.P.No.42457 of 2017

down proposition of law in this regard way back in 1953 in case

of Mohanlal Goenka v. Benoy Kishna Mukherjee, (1952) 2 SCC 648 : AIR

1953 SC 65. In Paragraph 23 of its Judgment, the Apex Court has

observed thus:—

‘There is ample authority for the proposition that even an erroneous

decision on a question of law operates as ‘res judicata’ between the

parties to it. The correctness or otherwise of a judicial decision has no

bearing upon the question whether or not it operates as ‘res judicta’. A

decision in the previous execution case between the parties that the

matter was not within the competence of the executing Court even though

erroneous, is binding on the parties.’

29. The Hon’ble Apex Court in R. Unnikrishnan v. V.K. Mahanudevan

8

,

observed as follows:

23. In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B.

Jeejeebhoy [(1970) 1 SCC 613] this Court held that for the application of

the rule of res judicata, the court is not concerned with the correctness or

otherwise of the earlier judgment.

30. Thus, given the categorical findings in the civil litigation in O.S.No. 129

of 1967; A.S.No. 164 of 1973 and S.A.No. 224 of 1978, the communication

made by respondent No.2 concerning Ac.2-00 cents out of Ac.11-38 cents in

S.No. 508 of Guntur, is hit by the principle of ‘Res Judicata’, and hence the

communication in respect of Ac.2-00 cts in S.No. 508 of Guntur, is liable to be

set aside.

31. Learned standing counsel during the arguments contended that the

petitioners can also approach the Wakf Tribunal and get the dispute resolved

regarding the Title, and it is the proper remedy.

Whether the petitioner had to approach the Wakf Tribunal?

8

(2014) 4 SCC 434

Page 15 of 28 SRS,J

W.P.No.42457 of 2017

32. The contention of the learned standing counsel has no merit, because

of Sections 6(1) and Sec 7(5) of the Waqf Act, 1995 (for short ‘the Act’).

Section 6 of the Act envisages disputes regarding auqaf. Section 6(1), which

is relevant is extracted herewith:

6. Disputes regarding auqaf.—(1) If any question arises whether a

particular property specified as waqf property in the list of auqaf is waqf

property or not or whether a waqf specified in such list is a Shia waqf or

Sunni waqf, the Board or the mutawalli of the waqf or any person

aggrieved may institute a suit in a Tribunal for the decision of the question

and the decision of the Tribunal in respect of such matter shall be final:

33. Section 7 of the Act deals with the power of the Tribunal to determine

the disputes regarding auqaf. Section 7(1) and (5) of the Act, relevant, is

extracted:

1) If, after the commencement of this Act, any question or dispute arises,

whether a particular property specified as waqf property in a list of auqaf is

waqf property or not, or whether a waqf specified in such list is a Shia

waqf or a Sunni waqf, the Board or the mutawalli of the waqf, or any

person aggrieved by the publication of the list of auqaf under section

therein, may apply to the Tribunal having jurisdiction in relation to such

property, for the decision of the question and the decision of the Tribunal

thereon shall be final:

……

…..

(5) The Tribunal shall not have jurisdiction to determine any matter which

is the subject-matter of any suit or proceeding instituted or commenced in

a civil court under sub-section (1) of section 6, before the commencement

of the Act or which is the subject-matter of any appeal from the decree

passed before such commencement in any such suit or proceeding or of

any application for revision or review arising out of such suit, proceeding

or appeal, as the case may be.”

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W.P.No.42457 of 2017

34. While section 6 outlines parties to approach the tribunal vis-a-vis a

dispute regarding property, Section 7 prescribes jurisdiction of the Tribunal to

adjudicate the issue. However, an exception is carved out by way of Section

7(5) of the Act, qua the jurisdiction. Once the Civil Court adjudicates the

dispute, and it becomes final, relegating the petitioner to the Tribunal is a futile

exercise and, in fact, the Tribunal lacks jurisdiction.

35. Learned standing counsel would contend that the writ petition itself, is

not maintainable.

Whether the petitioner can invoke the jurisdiction of this Court?

36. No doubt, the property right is no longer a Fundamental Right under

Part III of the Constitution of India. The property right is now recognised as a

Constitutional Right under Article 300-A of the Constitution of India. Since the

right of the petitioner under Article 300-A of the Constitution of India is

infringed, the petitioner can certainly maintain a writ petition under Article 226

of the Constitution of India.

37. In Sukh Dutt Ratra v. State of H.P.,

9

the Hon’ble Apex Court traced

the recognition of the right to property observed as follows:

“13. While the right to property is no longer a fundamental right

[“Constitution (Forty-fourth Amendment) Act, 1978”], it is pertinent to note

that at the time of dispossession of the subject land, this right was still

included in Part III of the Constitution. The right against deprivation of

property unless in accordance with procedure established by law,

continues to be a constitutional right under Article 300-A.

14. It is the cardinal principle of the rule of law, that nobody can be

deprived of liberty or property without due process, or authorisation of law.

The recognition of this dates back to the 1700s to the decision of the

King's Bench in Entick v. Carrington [Entick v. Carrington, 1765 EWHC

(KB) J98 : 95 ER 807] and by this Court in Wazir Chand v. State of H.P.

9(2022) 7 SCC 508,

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W.P.No.42457 of 2017

[Wazir Chand v. State of H.P., (1955) 1 SCR 408 : AIR 1954 SC 415]

Further, in several judgments, this Court has repeatedly held that rather

than enjoying a wider bandwidth of lenience, the State often has a higher

responsibility in demonstrating that it has acted within the confines of

legality, and therefore, not tarnished the basic principle of the rule of law.

15. When it comes to the subject of private property, this Court has

upheld the high threshold of legality that must be met, to dispossess an

individual of their property, and even more so when done by the State.”

38. In the case at hand, the petitioner purchased the plot under a registered

document dated 07.02.2011. Respondent No.2, having suffered a decree in

the civil proceedings, as seen from the material available on record, never

exercised the right over the property till sending the communication to

respondent No.3. The communication to include the land, in question, in the

prohibited list under Section 22-A(1)(c ) of the Registration Act, in the

considered opinion of this Court, would create an unwarranted litigation and

results in infringement of the right of the petitioner under Article 300-A of the

Constitution of India. Hence, the writ petition is maintainable.

Whether the judgment in Vinjamury Rajagopala Chary Vs

State of A.P.

10

, empowers respondent No.2 to overturn the civil

court decree and allows respondent No.2 to communicate the

property to be included the list of prohibited properties in

Section 22-A (1)(c) of the Registration Act 1908.

39. It is very unfortunate that without understanding the purport of the

judgment in Vinjamury Rajagopla Chary’s case, respondent No.2, while

communicating the list of properties, included Ac.2-00 in S.No.(D.No.)508

(508/1) of Guntur, despite the Civil Court judgment.

10

2016 (2) ALD 236

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W.P.No.42457 of 2017

40. In fact, in Vinjamuri Rajagopala Chary’s case, the Full Bench of the

composite High Court of Andhra Pradesh framed the points for consideration

as follows:

“1. What are the prerequisites that are to be satisfied for applying any one

or more of clauses (a) to (e) of Section 22-A(1) of the Registration Act to any

document dealing with alienation or transfer by way of sale, agreement of

sale, gift, exchange or lease, etc. in respect of immovable property presented

for registration?

2. Under what circumstances, the act of the Registering Authority

concerned (District Registrar or Sub-Registrar) in refusing from registration of

the aforementioned document/s by applying any one or more of the

prohibitory clauses (a) to (e) under Section 22-A(1) of the Registration Act

can be said to be justified?

In paragraph-5 of the judgment, it was observed as follows:

“5. Before we look at and consider Section 22-A of Registration Act,

it would be necessary and relevant to make a brief reference to the six

judgments of different learned Judges dealing with Section 22-A, to which

our attention was specifically invited to, so as to understand the exact

nature of controversy and factual matrix against which the questions were

framed and addressed therein, to enable us to frame and address the

questions, covering the field of operation of this provision. The six

judgments are:

T.Yedukondalu Vs. State of A.P. (2011 SCC OnLine P 179 : AIR

2011 AP 132).

Dr.DinakarMogili Vs. State of A.P. (2011 SCC OnLine AP 488 :

2011 (6) ALD 502)

Guntur City House Construction Co-operative Society Ltd., Guntur

Vs. Tahsildar ((2012 SCC OnLine AP 20 : 2012 (2) ALD 332).

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W.P.No.42457 of 2017

Raavi Satish Vs. State of A.P. (2012 SCC OnLIne AP 856 : 2013

(1) ALT 774).

Vinjamuri Rajagopala Chary Vs. State of A.P. (2015 SCC

OnLineHyd 407 : 2016 (2) ALD 236)

C.Radhakrishnama Naidu Vs. State of A.P. (2015 SCC OnLineHyd

198 : 2015 (4) ALT 1)

15. After considering each of the clauses of Section 22-A (1) (a) to

(e) of the Act and the Government instructions regarding communication

and notification, the reference is ordered as follows:

“36. We, thus, summarize our conclusions and issue directions as

follows:

(i) The authorities mentioned in the guidelines, which are obliged to

prepare lists of properties covered by clauses (a) to (d), to be sent

to the registering authorities under the provisions of Registration

Act, shall clearly indicate the relevant clause under which each

property is classified.

(ii) Insofar as clause (a) is concerned, the concerned District Collectors

shall also indicate the statute under which a transaction and its

registration is prohibited. Further in respect of the properties

covered under clause (b), they shall clearly indicate which of the

Governments own the property.

(iii) Insofar as paragraphs (3) and (4) in the Guidelines, covering

properties under clause (c) and (d) are concerned, the authorities

contemplated therein shall also forward to the registering

authorities, along with lists, the extracts of registers/gazette if the

property is covered by either endowment or wakf, and

declarations/orders made under the provisions of Ceiling Acts if the

property is covered under clause (d).

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W.P.No.42457 of 2017

(iv) The authorities forwarding the lists of properties/lands to the

registering authority shall also upload the same to the website of

both the Governments, namely igrs.ap.gov.in of the State of Andhra

Pradesh and registration.telangana.gov.in of the State of

Telangana. If there is any change in the website, the State

Governments shall indicate the same to all concerned, may be by

issuing a press note or an advertisement in prominent daily news

papers.

(v) No notification, contemplated by sub-section (2) of Section 22A, is

necessary with respect to the properties falling under clauses (a) to

(d) of sub-section (1) of Section 22-A.

(vi) The properties covered under clause (e) of Section 22-A shall be

notified in the official gazette of the State Governments and shall be

forwarded, along with the list of properties, and a copy of the

relevant notification/gazette, to the concerned registering

authorities under the provisions of Registration Act and shall also

place the said notification/gazette on the aforementioned websites

of both the State Governments. The Registering authorities shall

make available a copy of the Notification/Gazette on an application

made by an aggrieved party.

(vii) The registering authorities would be justified in refusing registration

of documents in respect of the properties covered by clauses (a) to

(d) of sub-section (1) of Section 22-A provided the authorities

contemplated under the guidelines, as aforementioned, have

communicated the lists of properties prohibited under these

clauses.

(viii) The concerned authorities, which are obliged to furnish the lists of

properties covered by clauses (a) to (d) of sub-section (1) of

Section 22-A, and the concerned Registering Officers shall follow

the guidelines scrupulously.

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W.P.No.42457 of 2017

(ix) It is open to the parties to a document, if the relevant property/land

finds place in the list of properties covered by clauses (a) to (d) of

sub-section (1) of Section 22-A, to apply for its deletion from the list

or modification thereof, to the concerned authorities as provided for

in the guidelines. The concerned authorities are obliged to consider

the request in proper perspective and pass appropriate order within

six weeks from the date of receipt of the application and make its

copy available to the concerned party.

(x) The redressal mechanism under Section 22-A(4) shall be before

the Committees to be constituted by respective State Governments

as directed in paragraph-35.1 above. The State Governments shall

constitute such committees within eight weeks from the date of

pronouncement of this judgment. (xi) Apart from the redressal

mechanism, it is also open to an aggrieved person to approach

appropriate forum including Civil Court for either seeking

appropriate declaration or deletion of his property/land from the list

of prohibited properties or for any other appropriate relief.

(xi) The directions issued by learned single Judges in six

judgments referred to above or any other judgments dealing

with the provisions of Section 22-A, if are inconsistent with the

observations made or directions issued in this judgment, it is

made clear that the observations made and directions issued in this

judgment shall prevail and would be binding on the parties including

the registering authorities under the Registration Act or

Government officials or the officials under the Endowments Act,

Wakf Act and Ceiling Acts. (emphasis is mine)

(xii) If the party concerned seeks extracts of the list/register/gazette of

properties covered by clauses (a) to (e) of Section 22-A (1),

received by the registering officer on the basis of which he refused

registration, it shall be furnished within 10 days from the date of an

application made by the aggrieved party.

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W.P.No.42457 of 2017

(xiii) Registering officer shall not act and refuse registration of a

document in respect of any property furnished to him directly by

any authority/officer other than the officers/authorities mentioned in

the Guidelines.

(xiv) Mere registration of a document shall not confer title on the

vendee/alienee, if the property is otherwise covered by clauses (a)

to (e), but did not find place in the lists furnished by the concerned

authorities to the registering officers. In such cases, the only

remedy available to the authorities under clauses (a) to (e) of sub

section (1) of Section 22-A is to approach appropriate forums for

appropriate relief.

41. The Direction No.(xii) in the Full Bench judgment would discern that the

directions issued by learned single Judges in six judgments, referred in the

judgment, or any other judgments dealing with the provisions of Section 22-A,

if it is inconsistent with the observations made or directions issued, the

observations made and directions issued in the judgment (full bench) shall

prevail and would be binding on the parties, including the registering

authorities under the Registration Act or Government officials or the officials

under the Endowments Act, Wakf Act and Ceiling Acts. The judgment, in the

considered opinion of this court, does not empower the authorities to reopen

the disputes already settled.

42. It is pertinent to mention here that after the judgment in Rajagopala

Chary’s case, the State authorities, be it Endowments, Wakf, etc.,

communicated the list of properties to the Commissioner Stamps and

Registration to include the properties belonged to the respective institutions,

despite the earlier litigation attained finality, in the list of Prohibited Properties

under Section 22-A of the Registration Act, 1908 and thereby opened a

pandaro’s box. Thus, communicating the properties to include in the list of

prohibited properties under Section 22-A of the Registration Act, is not only

illegal and arbitrary but also misuses the powers vested in it.

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43. However, as discussed supra, respondent No.2, despite the Civil Court

decree, communicated the list of properties including the Ac.2-00 cents in

Survey No.508 of Guntur, purportedly, acting upon the ratio in Vinjamury

Rajagopala Chari’s case. In fact, respondent No.2, being an instrumentality of

the State, created unwanted litigation. The indifference on the part of the Wakf

Board forced the petitioner to invoke the extraordinary jurisdiction.

Whether respondent No.2, by communicating the list of

properties, including Ac.2-00 in D.No.508 of Guntur, overreached

the judgment of the Civil Court?

44. It is a settled principle of law that a judgment rendered by the Court will

be set aside by the appellate Court alone. The operation of the judgment, in

certain circumstances, will be wiped out by making legislation. At no stretch of

imagination, respondent No.2, being the executive, can be allowed to overturn

the judgment rendered by a competent Civil Court. Respondent No.2 neither

sat over the judgment of the Civil Court nor overturned the judgment of the

Civil Court.

45. The Hon’ble Apex Court in Union of India v. K.M. Shankarappa

11

,

considered the challenge to the vires of the provisions Cinematograph Act,

1952, and also considered the aspect of whether the executive can sit over

the judgment of the Court, observed as follows:

7. We are unable to accept the submission of the learned counsel.

The Government has chosen to establish a quasi-judicial body which has

been given the powers, inter alia, to decide the effect of the film on the

public. Once a quasi-judicial body like the Appellate Tribunal, consisting of

a retired Judge of a High Court or a person qualified to be a Judge of a

High Court and other experts in the field, gives its decision that decision

would be final and binding so far as the executive and the Government is

concerned. To permit the executive to review and/or revise that decision

would amount to interference with the exercise of judicial functions by a

11

2001 (1) SCC 582

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W.P.No.42457 of 2017

quasi-judicial Board. It would amount to subjecting the decision of a quasi-

judicial body to the scrutiny of the executive. Under our Constitution the

position is reverse. The executive has to obey judicial orders. Thus,

Section 6(1) is a travesty of the rule of law which is one of the basic

structures of the Constitution. The legislature may, in certain cases,

overrule or nullify a judicial or executive decision by enacting an

appropriate legislation. However, without enacting an appropriate

legislation, the executive or the legislature cannot set at naught a judicial

order. The executive cannot sit in an appeal or review or revise a judicial

order. …”

46. Thus, in the guise of protecting the properties, despite the judgment of

the Civil Court, to overreach the judgment, the said communication, impugned

in the writ petition, was made. Respondent No.2, the Waqf Board, cannot act

as an appellate court and communicate the list and create another round of

litigation. Respondent No.2 should have kept in mind the National/State

litigation policy and its objectives before creating unwarranted litigation.

Whether respondent No.2, being the instrumentality of the

State, amenable to Article 12 of the Constitution of India, adhered

to principles of the litigation policy?

47. The State or its instrumentalities are expected to be a model litigant and

shall maintain ethical standards in prosecuting the litigation, being a

compulsive litigant. Of late, this Court has noticed that the State or its

instrumentalities are creating litigation and compelling individuals to approach

the Courts. The State-sponsored litigation not only burdens the private parties

but also undermines the credibility of the State as a responsible litigant. The

Hon’ble Apex Court highlighted the importance of a litigation policy way back

in the year 1978.

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W.P.No.42457 of 2017

48. The Hon’ble Apex Court in Dilbag Rai Vs UOI

12

and others commented

regarding the absence of a litigation policy of the States, observed as thus:

“The judgment just delivered has my full concurrence but I feel impelled

to make a few observations not on the merits but on governmental

disposition to litigation, the present case being symptomatic of a serious

deficiency. In this country the State is the largest litigant to-day and the

huge expenditure involved makes a big draft on the public exchequer. In the

context of expanding dimensions of State activity and responsibility, is it

unfair to expect finer sense and sensibility in its litigation policy, the absence

of which, in the present case, has led the Railway callously and

cantankerously to resist an action by its own employee, a small man, by

urging a mere technical plea which has been pursued right up to the summit

Court here and has been negative in the judgment just pronounced.”

49. Learned Single Judge of this Court in Kodali Rama Devi vs The State

of Andhra Pradesh

13

, observed thus:

These guidelines as recognized by Common Wealth Countries, the

litigation in the courts would be minimized though the Government of India or

State adopted Litigation Policy, but it did not serve any useful purpose.

Therefore, the Government being litigant is at least expected to follow the

ethical issues and practical considerations while dealing with a citizen in

litigation before the Court and the government is expected to be honest

litigant, to minimize the litigation.

The Andhra Pradesh State also adopted State Litigation Policy dated

30.08.2011 and certain guidelines have been issued with objects mentioned

in second paragraph of litigation policy. The main objects are to manage and

conduct litigation in a coordinated and time bound manner; ensure that

strong cases are won and weak cases are not pursued needlessly; reduce

overall government litigation in courts thereby providing relief to the judiciary

etc., and also issued certain directions to prevent and control avoidable

12

AIR 1974 SC 130

13

WP 18403 of 2021

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litigation and settlement of disputes in alternative dispute resolution system,

guidelines for filing of appeals. But without keeping in mind, the litigation

policy, framed by State dated 30.08.2011, government agencies and

authorities are proliferating the litigation by evasive and un-substantive pleas

before court, thereby increasing litigation in the courts, which is contrary to

guidelines issued by Apex Court in the judgments referred supra.

As per Clause 2.1 of the Andhra Pradesh State Litigation Policy, the

objective of the State is to transform Government from a compulsive litigant

into a responsible and efficient litigant, to:

a. manage and conduct litigation in a coordinated and time bound

manner;

b. ensure that strong cases are won and weak cases are not pursued

needlessly;

c. reduce overall Government litigation load in courts thereby providing

relief to the judiciary.”

50. Thus, despite the State litigation policy adopted by the State on

30.08.2011, respondent No.2 misused the powers vested in the office and

created another round of litigation. The respondent No.2 started an unethical

or unwarranted litigation in the guise of protecting the properties and

compelled the petitioner to invoke the extraordinary jurisdiction of this Court

under Article 226 of the Constitution of India.

51. It is, therefore, high time that both the Central and the State

governments undertake a comprehensive revision of their existing litigation

policies to ensure that unwarranted litigation is reduced. This Court hopes that

if the litigation policy is implemented, it will not only curb frivolous, vexatious

and repetitive litigations, but also protects the rights of private citizens and

uphold the integrity of the justice system.

52. The case at hand, a classic example, illustrates the State-sponsored

litigation, despite the finality of a Civil Court decree, to which respondent No.2

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W.P.No.42457 of 2017

is a party, through the executive / bureaucratic indifference to overreach the

Civil Court decree.

53. Given the discussion supra, the writ petition is allowed. The

communication sent by respondent No. 3 vide proceedings in

Rc.No.1104/2005/E4 dated 29.10.2007 to respondent No.1

54. Given the discussion supra, the writ petition is allowed. The

proceedings impugned in the writ petition, in respect of Ac.2-00 cts in S.No.

508 of Guntur, is hereby set aside. The authority shall take steps to delete

Ac.2-00 cts in S.No.508 (508/2) of Guntur from the list of prohibited properties

forthwith. The registering authorities shall entertain the documents presented,

if otherwise in order, in respect of the aforementioned properties. No order as

to costs.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________

SUBBA REDDY SATTI, J

Date : 06.05.2025

Note: LR Copy to be marked

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THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

WRIT PETITION NO: 42457 /2017

Dated: 06.05.2025

Note: LR Copy to be marked

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