Syeda Ghousiya Sultana, vs The State of Telangana,
- Court
- High Court for the State of Telangana
IN THE HIGH COURT FOR THE STATE OF TELANGANA
WRIT PETITION No.35945 of 2025
(CNR.No.HBHC010717512025)
Between:
Syeda Ghousiya Sultana
and 38 others.
… Petitioners
And
The State of Telangana,
reptd by its Principal Secretary,
Minority Welfare Department,
Hyderabad and four others.
…Respondents
JUDGMENT PRONOUNCED ON 15.09.2026
HON’BLE JUSTICE LAXMI NARAYANA ALISHETTY
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether her Lordship wishes to
see the fair copy of the Judgment? : Yes
_______________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
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WPNo.35945 of 2025
HON'BLE JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION No.35945 of 2025
(CNR.No.HBHC010717512025)
% 15.09.2026
Between:
# Syeda Ghousiya Sultana
and 38 others.
.... Petitioner
And:
$ The State of Telangana,
reptd by its Principal Secretary,
Minority Welfare Department,
Hyderabad and four others.
.... Respondent
< Gist:
> Head Note:
!
Counsel for the petitioners: Sri Jalli Kanakaiah,
senior counsel for
Sri Jalli Narendar, counsel-on-record
^ Counsel for Respondent No.2: Sri Farhan Azam Khan
^ Counsel for Respondent Nos.3 to 5: AGP for Revenue
? Cases Referred:
1. AIR 2001 SC 2472
2. 2004(8) SCC 1
3. 1997(1) SCC 444
4. 2015(4) SCC 30
5. AIR 1962 SC 1044
6. AIR 1952 SC 12
7. 2013(4) SCC 465
8. 1998(8) SCC 1
9. 2003(2) SCC 107
10. 2021(6) SCC 771
11. 2004(1) SCC 287
12. AIR 1954 SC 340
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13. (1979) 2 SCC 468
14. (2022) 4 SCC 414
15. (2017) 13 SCC 174
16. 2019(3) KLT 1064
17. (2023) 16 SCC 264
18. (2022) 20 SCC 383
19. 2024(4) ALT 466
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WPNo.35945 of 2025
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION No.35945 of 2025
(CNR.No.HBHC010717512025)
Reserved on 01.07.2026 Pronounced on 15.09.2026
Uploaded on 16.09.2026
Between:
Syeda Ghousiya Sultana
and 38 others.
…Petitioners
And :
The State of Telangana,
reptd by its Principal Secretary,
Minority Welfare Department,
Hyderabad and four others.
… Respondents
ORDER:
This Writ Petition is filed seeking issuance of a writ of Mandamus
declaring the action of respondent No.2 in issuing Gazette Notification
No.46-A, dated 20.12.2001, under Section 52 of the Waqf Act, 1954,
whereby the lands of petitioner Nos.1 to 5 in Sy.Nos.893, 894 and 897
admeasuring Ac.0.20 gts; in Sy.Nos.432, 433 and 434 admeasuring
Ac.0.05 gts; lands of petitioner Nos.6 and 7 in Sy.Nos.893. 894 and 897
admeasuring Ac 0 20 gts and in Sy.Nos.432, 433 and 434 admeasuring
Ac.0.03 gts; lands of petitioner Nos.8, 9 and 10 in Sy.Nos.893, 894, 895
and 897 admeasuring Ac.0.1325 gts and in Sy.Nos.432, 433 and 434
admeasuring Ac.0.03 gts; lands of petitioner Nos.11 to 20 in
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Sy.No.1031/EE admeasuring Ac.1.0950 gts and in Sy.No.1031/AA
admeasuring Ac.0.2475 gts; lands of petitioner Nos.21 to 25 in
Sy.Nos.893, 894, 895 and 897 admeasuring Ac.1.02 gts and in Sy.Nos.432,
433 and 434 admeasuring Ac.0.06 gts; lands of petitioner Nos.26 to 29 in
Sy.Nos.893/AA3, 894/AA3 and 897/AA3 admeasuring Ac.0.1325 gts;
lands of petitioner Nos.30 to 33 in Sy.Nos.893, 894, 895 and 897
admeasuring Ac.0.1325 gts and in Sy.Nos.432, 433 and 434 admeasuring
Ac.0.03 gts; lands of Petitioner No.34 in Sy.Nos.893, 894, 895, 896 and
897 admeasuring Ac.1.22 gts and in Sy.Nos.432, 433 and 434 admeasuring
Ac.0.03 gts; lands of petitioner Nos.35 and 36 in Sy.Nos.893, 894, 895 and
897 admeasuring Ac.1.02 gts and in Sy.Nos.432, 433 and 434 admeasuring
Ac.0.03 gts; lands of petitioner Nos.37, 38 and 39 in Sy.Nos.893, 894, 895
and 897 admeasuring Ac.0.1325 gts and in Sy.Nos.432, 433 and 434
admeasuring Ac.0.03 gts situated at Toopran Village and Mandal Medak
District, (hereinafter referred to as the “subject property’’), were notified
as ‘Waqf lands’ without issuing any notice to the petitioners, as illegal,
improper, null, void and unjust and consequently to delete the aforesaid
lands of the petitioners from the prohibitory list furnished by respondent
No.2.
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2. Heard Sri Jalli Kanakaiah, learned senior counsel appearing for Sri
Jalli Narendar, learned counsel-on-record for the petitioners, Sri Farhan
Azam Khan, learned Standing Counsel for Telangana State Waqf Board
and learned Assistant Government Pleader for Revenue.
3. Learned counsel for the petitioners submitted that petitioner Nos.21
to 25, 34, 35 and 36 are the absolute owners and possessors of the land in
Sy.Nos.893 to 897, having derived title to the same by way of inheritance
from ancestors; that the competent revenue authorities granted Occupancy
Rights Certificates (ORC), dated 05.06.1990, to the forefathers of
petitioner Nos.21 to 25, 34, 35 and 36; and that pursuant thereto, petitioner
Nos.21 to 25, 34, 35 and 36 were issued Pattadar Passbooks and Title
Deeds in their favour; that petitioner Nos.21 to 25, 34, 35 and 36 have
been in peaceful and uninterrupted possession and enjoyment of the
subject property, and their names have consistently reflected in the revenue
records as pattadars, owners and possessors.
3.1. He further submitted that when the petitioners approached the
registering authorities for execution and registration of sale deeds in favour
of prospective purchasers, they were shocked to learn that the subject
property is included in the prohibited properties list, vide Gazette
Notification No.46-A at Sl.No.19509, dated 20.12.2001.
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3.2. Learned counsel further submitted that immediately upon coming to
know of the inclusion of the subject property in the impugned Gazette
Notification, the petitioners approached respondent No.2 requesting for
deletion of the subject property from the prohibited properties list, but
respondent No.2 rejected their request claiming that the subject property is
waqf property; and as such, the petitioners’ subject property continues to
remain in the prohibited properties list, causing grave prejudice and
preventing the petitioners from exercising their lawful proprietary rights.
3.3. Learned counsel further submitted that respondent No.2 has not
asserted any lawful title or possession over the subject property; that at no
point of time, any notice was issued to the petitioners calling upon them to
show their title over the subject property before publication of the Gazette
Notification; and that no enquiry was conducted, no opportunity of hearing
was afforded to the petitioners and no proceedings were initiated
questioning the petitioners title or possession, and thus, the respondents
acted in violation of the principles of natural justice and fair procedure.
3.4. Learned counsel further submitted that respondent No.2, without
following the mandatory procedure contemplated under the provisions of
the Waqf Act, 1954, included the subject property in the impugned Gazette
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Notification allegedly issued under Section 5(2) thereof, which is wholly
illegal, arbitrary and without jurisdiction.
3.5. Learned counsel further submitted that the subject property is
private patta land which devolved upon the petitioners through ancestral
succession and family partition. The petitioners and their predecessors-in-
interest have been in lawful possession and enjoyment of the land for
several decades. The land has always been recognized as private patta land
in all revenue records, and at no point of time, has it ever been dedicated
for any religious, charitable or pious purpose so as to constitute Waqf
property.
3.6. Learned counsel further submitted that the ORCs granted in favour
of forefathers of the petitioners have attained finality, since the same have
not been cancelled, modified or challenged before any competent forum.
As the revenue entries standing in the name of the petitioners have
remained intact for several decades, there is a presumption of correctness
until rebutted in accordance with law. Therefore, respondent No.2 could
not have unilaterally treated the subject property as Waqf property.
3.7. Learned counsel further submitted that the action of respondent
No.2 in illegally including the subject property in the prohibited properties
list has seriously affected the petitioners’ constitutional and statutory
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rights, and the petitioners have been deprived of their right to alienate,
mortgage or otherwise enjoy the subject property despite possessing valid
title. Such action of respondent No.2 is without authority of law and in
violative of Articles 14 and 300-A of the Constitution of India and hence,
the same cannot be sustained.
3.8. Learned counsel further submitted that the administrative action
affecting valuable property rights of persons must satisfy the test of
fairness, transparency and reasonableness. The impugned action of the
respondents fails to meet any of these constitutional requirements; that the
action of respondent No.2 in including the subject property of the
petitioners in the impugned Gazette notification is arbitrary and reflects
failure on the part of the respondent-authorities to discharge their statutory
duties, which resulted in irreparable hardship and financial loss to the
petitioners.
4. By contending as above, learned counsel for petitioners prayed to
allow the Writ Petition.
5. On the other hand, learned Standing Counsel for Waqf Board
submitted that in the year 1960, the then Government of Andhra Pradesh
appointed a Survey Commissioner of Waqfs for survey and demarcation of
the Waqf properties in the State, as provided under Section 4 of the Waqf
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Act, 1954. Accordingly, the Survey Commissioner of Waqfs, through his
survey officials and by issuing notice through tom-tom beat in rural areas,
conducted survey and demarcated all the Waqf properties, by preparing
survey forms as prescribed; that the survey conducted by the Survey
Commissioner of Waqfs in respect of subject property was also to the
knowledge of the general public and the said tom-tom beat was got done
through the village servants, village patwaris, village revenue officers and
revenue inspectors, etc., and as such, the petitioners cannot contend that no
notice was issued to them before publication of the impugned Gazette
notification and due process of law was not followed.
5.1. Learned Standing Counsel further submitted that though the
exercise of survey and demarcation of all the Waqf properties by making
tom-tom beat announcement for the local public was taken up in the early
1960s itself, the contents of the survey forms were published in the year
2001 in the impugned Gazette Notification, which has become final as
provided under the Section-6 of the Waqf Act, 1955.
5.2. Learned Standing Counsel vehemently submitted that the present
Writ Petition filed challenging the Gazette Notification issued under the
Waqf Act, 1954, after repeal of the Waqf Act, 1954, is not maintainable.
He further submitted that the changes under Sections 4 and 5 which are
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germane to the instant lis stands altered by the Unified Waqf Management,
Empowerment, Efficiency and Development Act, 1995 (for brevity
‘UWMEED’) as amended by the Waqf Amendment (Act No.14 of 2025)
having come into force w.e.f. 08.04.2025 and that prior to that also, the
Waqf Act, 1995 had been amended by the Amendment Act No.27 of 2013,
w.e.f 01.11.2013. The Waqf Act, 2025, provides for registration of all
waqf properties, with the introduction of UWMEED Portal on 06.06.2025,
to digitalize and streamline Auquaf registration in line with the Waqf
Amendment Act 14 of 2025, however, the procedure has not been
completed.
5.3. Learned Standing Counsel further submitted that the UWMEED,
1995 being procedural law, stands as an exception and is retroactive and in
support of his submission, he relied upon the judgment rendered in Shyam
1
Sunder and others vs Ram Kumar and another , which had been
2
reiterated in Zile Singh vs State of Haryana .
5.4. Learned Standing Counsel has placed reliance on the judgment
3
rendered in Shiv Sagar Tiwari vs Union of India , wherein the Hon'ble
Supreme Court observed that publication in news papers is sufficient
1
AIR 2001 SC 2472
2
2004 (8) SCC 1
3
1997 (1) SCC 444
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notice to the local populace who were affected and were non-local
residents.
5.5. He further submitted that the every waqf institution has serial
number; that notices have been given to each institution before conducting
separate survey; that about 92,000 institutions were surveyed during the
first Survey conducted by the Survey Commissioner, who submitted his
report to the Government.
5.6. Learned Standing Counsel further submitted that the relief sought
by writ petitioners in the present writ petition tantamounts to virtual
perpetuation of illegality, since at the outset, the present writ petition is not
maintainable and is being hit by delay and laches, as held in catena of
judgments of this Court and the Hon’ble Apex Court. In support thereof,
he relied on the judgment of the Hon’ble Apex Court in Charulatha
4
Behera vs Pravati Parida and others .
5.7. Learned Standing Counsel for Waqf Board finally submitted that
the judgments relied by learned counsel for the petitioners is no more good
law and further, when the Parliament in its wisdom has enacted the Waqf
Act, 2025, thereby changing the procedure to be followed, which came
into effect from 08.04.2025, the writ petitioners cannot contend non-
4
2015 (4) SCC 30
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compliance of the procedure which is not in force as on date and
accordingly, prayed to dismiss the Writ Petition.
6. Learned counsel for petitioners, in reply to submissions made by
learned Standing Counsel for Waqf Board, submitted that the contention of
the Waqf Board that survey was conducted under Section 4 of Waqf Act,
1954, is unsupported by production of the original survey report. Under
Sections 4 and 5 of the Waqf Act, 1954 (and similarly under the 1995 Act),
the Survey Commissioner must conduct a quasi-judicial enquiry, issue
notices to persons interested, invite objections, examine revenue records
and submit a detailed report. Publication under Section 5 of the Waqf Act,
1954 must be based on such lawful enquiry. However, in the instant case,
the Waqf Board has not placed on record any survey proceedings, enquiry
file, objection register and the notice acknowledgments.
6.1. Learned counsel further submitted that the subject property was
recorded as patta land along with the name of pattadar in the revenue
records, therefore, when the vested proprietary rights are affected,
individual notice is mandatory. In such an event, the specific case of Waqf
Board about issuance of notice by beat of tom tom in the Village is legally
insufficient. Public announcement without proof, cannot substitute service
of notice on affected land owners.
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6.2. Learned counsel further submitted that the contention of the Waqf
Board that the impugned Gazette publication attained finality and as such,
the petitioners ought to have approached the Waqf Tribunal under Section
83 of Waqf Act is misconceived. The challenge in the present Writ Petition
is to the very validity and legality of the notification. When mandatory
statutory provisions of law are not complied with and the action of the
Waqf Board is void ab initio , writ jurisdiction can be invoked and Writ
Petition is maintainable.
6.3. Learned counsel further submitted that admittedly, the Waqf Act,
1954 stood repealed with the enactment of Waqf Act 1995. After repeal,
no notification could be issued under the repealed Act, 1954. However, the
action of the respondents in issuing the notification, dated 14.08.2003,
under the repealed Waqf Act, 1954, declaring vast extent of properties as
waqf properties, has, in fact, driven a large number of persons to approach
this Court by filing Writ Petitions challenging the said notification. Section
112 of Waqf Act, 1995, saves only completed actions; it does not authorize
fresh publication under a dead statute.
6.4. Learned counsel further submitted that the Waqf Board relies on
the doctrine " Once Waqf, always Waqf ." The doctrine applies only where
Waqf character is first lawfully established. In the present cases, there is no
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proof of wakif, no deed of dedication, no evidence of permanent charitable
or religious endowment, and no statutory adjudication establishing Waqf
status, hence, the said doctrine has no application to the present case.
6.5. Learned counsel further submitted that even assuming existence
of graves or religious structures in the subject property, as contended in the
counter, mere physical existence does not establish legal Waqf dedication.
Dedication must be proved in accordance with law. In this regard, learned
counsel for petitioners relied on the order passed by a learned single Judge
of this Court in W.P.No.33133 of 2014, wherein it is held that mere
inclusion of a particular property in Gazette notification without statutory
compliance of the mandatory procedure under the Act does not create title
on the Waqf Board over the said property.
6.6. Learned counsel further submitted that the contention of the Waqf
Board that delay defeats the petitioners' claim is untenable, since a void
action can be challenged at any time. A notification issued without
jurisdiction is a nullity in the eye of law; that the long inaction on the part
of the Waqf Board, failure to exercise possession, manage the property,
collect rent, or assert rights for decades, all put together belies the claim of
Waqf character and demonstrates absence of effective control or
recognition.
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7. On careful consideration of the submissions advanced by the learned
counsel appearing on either side and on perusal of the relevant material
available on record, the following issues emerge for adjudication:-
(1) Whether the petitioners have locus standi to maintain the Writ
Petition?
(2) Whether there is delay and laches on the part of the petitioners?
(3) Whether the Writ Petition is maintainable inspite of availability of
alternative remedy of approaching the Waqf Tribunal?
(4) Whether the procedure contemplated under the Waqf Act, 1954,
has been followed prior to issuance of the impugned Gazette
Notification?
(5) To what relief?
Issue No.1 :-
8. The petitioners have produced ORC, vide D.Dis.No.A/427/901,
dated 05.06.1990, Pattadar Passbooks, Title Deeds and revenue records
reflecting their names as pattadars, owners and possessors of the subject
lands. It is not the case of the respondents that the ORC or the revenue
entries standing in the names of the petitioners have been cancelled or
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declared invalid by any competent forum. Thus, the petitioners continue to
enjoy prima facie title and lawful possession over the subject property.
9. The grievance of the petitioners is that their subject property has
been included in the impugned Gazette Notification, dated 20.12.2001, and
is brought under the prohibited properties list, thereby preventing them
from alienating or otherwise dealing with the subject property.
Undoubtedly, by such action of the Waqf Board, the petitioners are
subjected to civil consequences and it also directly affects their
constitutional and proprietary rights guaranteed under Article 300-A of the
Constitution of India. Therefore, the petitioners are persons directly
aggrieved by the impugned action and possess sufficient legal interest to
invoke the extraordinary jurisdiction of this Court under Article 226 of the
Constitution.
10. The expression “person aggrieved” has consistently received liberal
interpretation by the Hon'ble Supreme Court. In Calcutta Gas Company
5
(Proprietary) Ltd. v. State of West Bengal , the Constitution Bench of
Hon'ble Supreme Court held that a person who has suffered a legal injury
or whose legal rights are directly affected by administrative action has the
5
AIR 1962 SC 1044
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necessary locus standi to maintain a writ petition. Similarly, in State of
6
Orissa v. Madan Gopal Rungta , it was held that the existence of an
enforceable legal right is the foundation for invoking jurisdiction under
Article 226.
11. Likewise, in Ayaaubkhan Noorkhan Pathan v. State of
7
Maharashtra , the Hon’ble Supreme Court explained the concept of an
“aggrieved person” and held that a person can maintain a writ petition
when he suffers a legal grievance by reason of deprivation of something to
which he is legally entitled. The Court observed that only a person who has
suffered legal injury by reason of violation of his legal or constitutional
right has the locus to maintain proceedings.
12. In the present case, the petitioners have demonstrated that the
impugned notification has directly impaired their right to enjoy, alienate
and deal with the subject property. Therefore, they clearly answer the
description of “persons aggrieved”.
13. Furthermore, the petitioners being recorded as pattadars and
possessors of the subject property and whose proprietary rights stand
directly affected by the impugned notification, have a clear legal interest in
6
AIR 1952 SC 12
7
2013 (4) SCC 465
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the subject matter. They satisfy the requirement of being “persons
aggrieved” and are fully competent to invoke the jurisdiction of this Court
under Article 226 of the Constitution.
14. In the light of the above, this Court holds that the petitioners have
locus standi to maintain the present writ petition. The preliminary
objection raised by the respondent-Waqf Board regarding maintainability
of the Writ Petition due to lack of locus standi of the petitioners is,
therefore, rejected.
15. Accordingly, this issue is answered in favour of the petitioners.
Issue No.2 :-
16. As regards the contention of the respondents that the Writ Petition
is liable to be dismissed on the grounds of delay and laches, it is pertinent
to note that the petitioners have specifically pleaded that they came to
know of the inclusion of their lands in the prohibited properties list only
when they approached the registering authority for registration of sale
deeds and immediately, they approached respondent No.2 seeking deletion
of their lands from the prohibited properties list. Mere delay on the part of
the petitioners cannot defeat their right to challenge an action allegedly
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affecting their vested proprietary rights. The issue of delay cannot be
decided as an independent issue, where the substantial rights of the parties
are to be decided based on the merits of the case.
17. Therefore, this issue is answered accordingly.
Issue No.3 :-
18. As regards the objection raised by learned Standing Counsel for the
Waqf Board with regard to maintainability of the Writ Petition in view of
availability of alternative remedy of approaching the Waqf Tribunal under
Section 83 of the Waqf Act, it is to be seen that the petitioners have
questioned the very jurisdiction of the respondents to include their lands in
the Gazette Notification without complying with the mandatory provisions
of Sections 4 and 5 of the Waqf Act, 1954, and also in violation of the
principles of natural justice. The challenge is not merely to the correctness
of the notification but to the legality of the decision-making process itself.
19. It is a settled principle that the existence of an alternative remedy
does not bar the exercise of writ jurisdiction, where the impugned action is
without jurisdiction or in violation of principles of natural justice. In
8
Whirlpool Corporation v. Registrar of Trade Marks , the Hon’ble
Supreme Court held that a writ petition is maintainable, notwithstanding
8
1998 (8) SCC 1
21
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the availability of an alternative remedy to the petitioner, to seek
enforcement of fundamental rights when there has been violation of
principles of natural justice; or the impugned proceedings are wholly
without jurisdiction or the vires of an Act is under challenge.
20. The said principle has been reiterated in Harbanslal Sahnia v.
9
Indian Oil Corporation Ltd . , and Radha Krishan Industries v. State of
10
Himachal Pradesh , wherein the Hon’ble Supreme Court summarized the
exceptions to the rule of alternative remedy and held that where an order is
passed without jurisdiction or in breach of natural justice, the High Court
can entertain a writ petition under Article 226 of Constitution of India.
21. In this regard, it is trite to refer to judgment of the Hon’ble
Supreme Court in Rafique Bibi (Dead) by LRs v. Sayed Waliuddin (Dead)
11
by LRs , wherein it is held that an order which is a nullity for want of
jurisdiction can be challenged whenever and wherever it is sought to be
12
enforced. Similarly, in Kiran Singh v. Chaman Paswan , the Hon'ble
Supreme Court held that a decree or order passed without jurisdiction is a
nullity and its invalidity can be set up whenever it is sought to be enforced.
9
2003 (2) SCC 107
10
2021 (6) SCC 771
11
2004 (1) SCC 287
12
AIR 1954 SC 340
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22. In the context of Waqf disputes, the Hon’ble Supreme Court in
13
Board of Muslim Waqfs, Rajasthan v. Radha Kishan , held that where
persons claiming independent title are affected by inclusion of their
property as Waqf property, they are entitled to challenge such inclusion
before the competent forum. The decision recognizes that private
landholders whose rights are prejudicially affected by Waqf notifications
are the ‘persons aggrieved’ and they have the requisite standing to question
such action.
23. Therefore, when the petitioners allege that the impugned
notification is void ab initio for want of jurisdiction and non-compliance of
mandatory statutory requirements, they are entitled to invoke the writ
jurisdiction of this Court.
24. This issue is accordingly answered.
Issue No.4: -
25. The challenge in the Writ Petition to the impugned gazette
notification dated 20.12.2001 is primarily on the ground that the procedure
prescribed under Section 4 of the Waqf Act, 1954, which is pari materia to
Sections 4 and 5 of the Waqf Act, 1995 has not been followed while
13
(1979) 2 SCC 468
23
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issuing the impugned notification, thereby showing the subject property as
waqf property.
26. A perusal of the impugned notification reveals that the same has
been issued on 20.12.2001, by claiming that the subject lands have been
surveyed under Section 4(3) of the Waqf Act, 1957 (wrongly noted instead
of the Waqf Act, 1954) and published under Section 5(2) of the Waqf Act,
1954.
27. At this juncture, it is relevant to refer to vociferous contention of
the learned Standing Counsel for the Waqf Board that in view of the
judgment of the Hon’ble Supreme Court in Rashid Wali Beg v. Farid
14
Pindari , and Section 83(1) of the Waqf Act, 1995, the dispute at hand
about the nature and character of the property being waqf can be dealt with
only by the Waqf Tribunal and neither the Writ Court nor the State
Government is competent to decide such issues.
28. The High Court under Article 226 of the Constitution of India is
always empowered to examine whether essential attributes for declaration
of waqf have been made out or not; whether the procedure of survey and
conducting quasi-judicial inquiry prior to declaration of any property as
waqf has been diligently and sincerely followed by the authorities as it has
14
(2022) 4 SCC 414
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the draconian consequence of depriving a large number of citizens of their
fundamental and constitutional rights, and if this Court finds that a specific
property has been published in the official gazette declaring the same as
waqf property without following the mandatory procedure contemplated
under the Act in vogue, it can always intervene or decline to acknowledge
the character of waqf to such property.
29. At this stage, it is apposite to refer to the judgment of the Hon'ble
Supreme Court in Madanuri Sri Ramachandra Murthy v. Syed
15
Jalal , wherein while dealing with a case where the waqf authorities had
staked claim to a property/land/structure as waqf property in a similar
fashion abridging the fundamental rights of large number of adversely
affected citizens or have acted arbitrarily, the Hon'ble Supreme Court
clearly held that conducting of survey by the Survey Commissioner prior
to notification of any property as a waqf is an indispensable statutory
procedure and survey contemplates a quasi-judicial inquiry at the grass
root level as to whether the property is actually a waqf property or not; that
the inclusion of any property as a waqf property must be with due
application of mind; that only thereafter, it can be sent to the Government
for notification in the official gazette; and that if the above mandatory
15
(2017) 13 SCC 174
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procedure has not been followed before issuing publication in the official
gazette, then such property cannot be assumed as a waqf property.
30. For better appreciation of the case, the relevant provisions of the
Waqf Act, 1954, are extracted hereunder:-
“Section 4 empowered the State Government to appoint a State
Commissioner, and as many Additional and Assistant Survey
Commissioners of Waqf as may be necessary, by a notification in
the official gazette for the purpose of making survey of waqf
properties existing within the State. The Survey Commissioner,
after making a survey of waqf properties, would submit his report
to the State Government containing various particulars as
mentioned in sub-sections (3) and (4) of Section 4 of the Act.
Section 5 mandated that on receipt of such report from the
Survey Commissioner made under sub-section (3) of Section 4, the
State Government should forward a copy of the same to the Waqf
Board. The Waqf Board would examine the report forwarded to it
and publish in official gazette, the list of waqfs in the State.
For resolving the disputes regarding waqfs, Section 6 of
the 1954 Act , provided jurisdictional civil Court as a forum and
decision of civil Court in respect of such matters should be final. It
was also clarified that no such suit should be entertained by the
civil Court, after the expiry of one year from the date of publication
of the list of waqfs as per sub-section (2) of Section 5 .
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Sub-section (4) of Section 6 stated that the list of waqfs
published under sub-section (2) of Section 5 shall be final and
conclusive unless such list is modified on the direction of the civil
Court.
The provisions found in Sections 5 and 6 of the Waqf Act,
1995 and the 1954 Act are almost akin to each other. However, the
change brought in by Parliament under the 1995 Act is that, in the
case of dispute regarding waqfs, the aggrieved party needs to
approach the Waqf Tribunal constituted under Section 83 of
the Waqf Act, 1995 and consequently, the jurisdiction of the civil
Court is taken away. Except the aforesaid change, no other
substantial modification is found in those provisions.”
31. It is relevant to refer to the judgment of Division Bench of the High
16
Court of Kerala in Ezhome Sunni Valiya Juma v. Kerala Waqf Board
wherein it is held that inquiry to be conducted by Waqf Board before
declaring any property as a waqf is a ‘ quasi-judicial function’ , and
therefore, no unilateral decision could have been taken without recording
any reason as to how, when and why the property came to be included as a
waqf property.
32. It is relevant to refer to the judgment in Salem Muslim Burial
17
Ground Protection Committee v. State of Tamil Nadu , wherein the
16
2019 (3) KLT 1064
17
(2023) 16 SCC 264
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WPNo.35945 of 2025
Hon'ble Supreme Court had an occasion to consider the challenge to the
conversion of private property as a waqf property, on the ground of non-
compliance of statutory procedure prescribed under the Waqf Act of 1954
or 1995, and the Hon'ble Supreme Court, after comprehensively examining
the scheme of both the Acts of 1954 and 1995, categorically held that mere
notification in the official gazette is not enough, but the notification must
be preceded by a preliminary survey followed by submission of report to
the State Government about the exact status of the land proposed to be
notified as waqf. Conducting of survey and quasi-judicial inquiry before
declaring any property as a waqf property is sine qua non before declaring
any property as waqf property, in the absence of which, notification
under Section 5 of the Waqf Act stands vitiated and would carry no legal
recognition. The Supreme Court further held that such a notification
published in the official gazette at the instance of Waqf Board shall not
bind the State Government at all, especially when the mandatory procedure
preceding inclusion of property as a waqf under Sections 4 and 5 of
the Act of 1954 has not been followed.
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WPNo.35945 of 2025
33. The above principles have been reiterated in State of Andhra
18
Pradesh v. A.P. State Waqf Board , wherein it is observed thus:
“A plain reading of the provisions of the above two Acts would
reveal that the notification under Section 5 of both the Acts
declaring the gist of the waqfs shall only be published after
completion of the process as laid down under Section 4 of the
above Acts, which provides for two surveys, settlement of disputes
arising thereto and the submission of the report to the State
Government and to the Board. Therefore, conducting of the
surveys before declaring a property a waqf property is a sine qua
non. In the case at hand, there is no material or evidence on
record that before issuing notification under Section 5 of
the Waqf Act, 1954, any procedure or the survey was conducted
as contemplated by Section 4 of the Act. In the absence of such a
material, the mere issuance of the notification under Section 5
of the Act would not constitute a valid waqf in respect of the suit
land. Therefore, the Notification dated 29-4-1959 is not a
conclusive proof of the fact that the suit land is a waqf property.
In T.N. Waqf Board v. Hathija Ammal (2001) 8 SCC 528, it
was observed that the Waqf Board should follow the procedure as
required under Sections 4, 5 and 6 or Section 27 of the Waqf
Act before notifying the waqfs under Section 5 of the Act.
In Madanuri Sri Rama Chandra Murthy v. Syed
Jalal (supra), it was observed as under: (SCC p. 185, Para 16)
18
(2022) (20) SCC 383
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WPNo.35945 of 2025
“ Thus, it is amply clear that the conducting of survey by the
Survey Commissioner and preparing a report and forwarding the
same to the State or the Waqf Board precedes the final act of
notifying such list in the official gazette by the State under
the 1995 Act (it was by the Board under the 1954 Act ). As
mentioned supra, the list would be prepared by the Survey
Commissioner after making due enquiry and after valid survey as
well as after due application of mind. The enquiry contemplated
under sub-section (3) of Section 4 is not merely an informal
enquiry but a formal enquiry to find out at the grass root level, as
to whether the property is a wakt' property or not. Thereafter the
waqf board will once again examine the list sent to it with due
application of its mind and only thereafter the same will be sent to
the Government for notifying the same in the gazette.”
It may be noted that Waqf Board is a statutory authority
under the Waqf Act. Therefore, the official gazette is bound to
carry any notification at the instance of the Waqf Board but
nonetheless, the State Government is not bound by such a
publication of the notification published in the official gazette
merely for the reason that it has been so published. In State of
Andhra Pradesh v. Andhra Pradesh Waqf Board (supra), this
Court consisting of one of us (V. Ramasubramanian, J. as a
Member) held that the publication of a notification in the official
gazette has a presumption of knowledge to the general public just
like an advertisement published in the newspaper, but such a
notification published at the instance of the Waqf Board in the
State gazette is not binding upon the State Government. It means
that the notification, if any, published in the official gazette at
30
LNA, J
WPNo.35945 of 2025
the behest of the Waqf Act giving the lists of the waqfs is not a
conclusive proof that a particular property is a waqf property
especially, when no procedure as prescribed under Section 4 of
the Waqf Act has been followed in issuing the same.
In view of the aforesaid facts and circumstances, we do not
find any substance in the argument that the suit land was a waqf
property and as such would continue to be a waqf always. In the
absence of any evidence of valid creation of a waqf in respect of
the suit property, it cannot be recognised as a waqf so as to allow
it to be continued as a waqf property irrespective of its use or
disuse as a burial ground.”
[emphasis supplied by us]
34. In the present case, the Waqf Board was required to establish that
the statutory procedure prescribed under Sections 4 and 5 of the Waqf Act,
1954, had been duly followed before the subject properties were included
in the impugned Gazette notification.
35. Section 4 of the 1954 Act contemplated survey of waqf properties
by the Survey Commissioner appointed by the State Government. The
Survey Commissioner, after conducting survey and requisite enquiry and
on due application of mind, was required to submit a report to the State
Government containing the particulars prescribed under Section 4(3) of the
Act. Thereafter, under Section 5, the report was required to be forwarded
31
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WPNo.35945 of 2025
to the Waqf Board, which was required to examine the same and publish
the list of waqfs in the Official Gazette.
36. The statutory scheme clearly indicates that the survey and enquiry
under Section 4 constitute the foundation for the subsequent publication of
the properties under Section 5. The requirement of conducting a proper
survey and enquiry cannot be treated as an empty formality. The enquiry
contemplated under Section 4 is a substantive enquiry for determining
whether the properties in question constitute waqf properties, and the
authorities are required to apply their mind to the relevant material before
the properties are included in the final list.
37. As stated supra, in Salem Muslim Burial Ground Protection
Committee ’s case (cited supra) and in State of Andhra Pradesh ’s case
th
(19 cited supra), the Hon’ble Supreme Court has held that survey under
Section 4 is not merely an administrative exercise, but involves a quasi-
judicial enquiry; and that the survey, inquiry and the report must precede
the publication of the Gazette notification.
38. In the case on hand, though on behalf of the respondents, it has
been contended that the respondents-authorities have followed the due
process of law before issuing the impugned notification, no material is
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LNA, J
WPNo.35945 of 2025
placed before this Court as to when and how the respondents have
conducted preliminary survey of the waqf properties as contemplated
under Sections 4 and 5 of the 1954 Act.
39. Therefore, from the above, it is obvious that the Waqf Board has to
establish compliance of the following steps/foundational
requirements/procedure, before declaring a property as waqf property in
the official gazette:-
(i) that a Survey Commissioner was appointed in accordance with Section
4 of the Waqf Act, 1954;
(ii) that a preliminary survey of the subject properties was conducted by
the competent Survey Commissioner;
(iii) that a formal enquiry was conducted with respect to the nature,
character, origin and alleged dedication of the subject properties as waqf
properties;
(iv) that the Survey Commissioner prepared and submitted a report under
Section 4(3) containing the particulars prescribed under the Act;
(v) that the said report was forwarded by the State Government to the
Waqf Board in accordance with Section 5(1) of the Act;
33
LNA, J
WPNo.35945 of 2025
(vi) that the Waqf Board independently examined the said report and
applied its mind to the material before including the subject properties in
the list of waqfs;
(vii) that the persons having an interest in or possession of the subject
properties were afforded an effective opportunity to place their objections
before the competent authority during the course of the enquiry;
(viii) that a notice of the survey or enquiry was issued to the affected
persons and that their objections, if any, were considered;
(ix) that the alleged survey particulars, including the survey report, local
inspection report, revenue records and other foundational material, were
prepared and maintained by the competent authority;
(x) that the proclamation of the survey proceedings by way of tom-tom/
beat of drum was in fact undertaken, and no contemporaneous record
evidencing such publication in newspapers has been placed before this
Court ; and
(xi) that the properties were identified with sufficient particulars, including
survey numbers, extent, boundaries and the basis upon which each
individual property was treated as waqf property.
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WPNo.35945 of 2025
40. Significant to note that the counter-affidavit filed on behalf of the
Waqf Board is completely silent with regard to compliance of the aforesaid
foundational requirements. The Waqf Board has not produced the survey
report, the proceedings of the Survey Commissioner, the material relating
to the enquiry, the objections, if any, allegedly received and considered, or
any record evidencing compliance with the procedure preceding the
impugned notification. Mere assertion in the counter-affidavit that the
notification was issued in accordance with law cannot supersede the
production of the statutory record demonstrating compliance with the
mandatory procedure.
41. Once a property is included in the statutory list of waqfs, serious
civil consequences follow. Therefore, the authority exercising the statutory
power was required to strictly adhere to the procedure prescribed by the
Act and could not dispense with the foundational survey and enquiry
contemplated under Section 4 thereof.
42. It is also pertinent to refer to the judgment of a Co-ordinate Bench
19
of this Court in Cherukuri Praveena and others v. State of Telangana ,
wherein, while considering a similar challenge under the Waqf Act, it was
19
2024 (4) ALT 466
35
LNA, J
WPNo.35945 of 2025
held that where the procedure prescribed under Sections 4 and 5 of the
Waqf Act had not been followed before publication of the Gazette
notification, mere issuance of the Gazette notification would not, by itself,
validate inclusion of the property as waqf property. The Gazette
notification cannot be treated as an independent or self-proving source of
title or character of the property as waqf when the foundational statutory
proceedings/requirements/steps leading to such notification are not
established.
43. There is yet another important aspect which requires consideration.
The impugned notification dated 20.12.2001 was admittedly issued under
the provisions of the Waqf Act, 1954. The repealing of Waqf Act, 1954, by
the Waqf Act, 1995 and the amendments introduced thereafter, cannot
retrospectively cure the non-compliance with the mandatory procedure
prescribed under the statute which governed the issuance of the impugned
notification. In other words, the validity of the notification dated
20.12.2001 has to be tested with reference to the statutory requirements
applicable to the enactment under which the notification was issued and it
cannot be sustained merely by relying upon subsequent amendments or
subsequent statutory mechanisms.
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LNA, J
WPNo.35945 of 2025
44. It is also pertinent to note that the subsequent Unified Waqf
Management, Empowerment, Efficiency and Development Act, 1995, as
amended by the Waqf (Amendment) Act, 2025, does not contain any
provision which retrospectively validates a Gazette notification issued
under the repealed Waqf Act, 1954, without proof of compliance with the
mandatory survey and enquiry contemplated under Sections 4 and 5 of the
1954 Act. The subsequent statutory regime cannot be invoked to cure a
foundational defect which existed at the very inception of the impugned
notification.
45. More importantly, the question in the present case is not merely
whether an aggrieved person has a statutory remedy against an entry in the
list of auqaf. The primary question is whether the very notification dated
20.12.2001 was validly issued in accordance with the mandatory procedure
prescribed under the Act.
46. Section 6 of the Waqf Act, 1995 provides a mechanism for
determination of a dispute as to whether a particular property specified in
the list of auqaf is waqf property or not. However, such provision cannot
be construed as dispensing with the mandatory statutory requirements
which precedes the publication of the original notification. The existence
37
LNA, J
WPNo.35945 of 2025
of an alternative remedy cannot retrospectively validate an otherwise
defective exercise of statutory power.
47. Thus, the Waqf Board cannot contend that availability of a remedy
under the subsequent statutory regime renders the challenge to the validity
of the notification dated 14.08.2003 to be impermissible.
48. The subsequent statutory provisions cannot be relied upon either to
validate the impugned notification or to shift the burden upon the
petitioners to establish the invalidity of the impugned notification, whose
statutory foundation has itself not been demonstrated by the Waqf Board.
49. There is distinction between (i) a challenge to the correctness of an
entry validly made after following the statutory procedure, and
(ii) a challenge to the very jurisdictional and procedural foundation upon
which the notification was issued, are required to be maintained. In the
former case, the statutory remedy prescribed under the Act may have
relevance. In the latter case, where the competent authority has failed to
establish compliance of the mandatory conditions precedent for exercise of
statutory power, the Court is empowered to examine whether the impugned
notification itself was lawfully issued.
38
LNA, J
WPNo.35945 of 2025
50. Therefore, mere existence of a subsequent statutory mechanism for
adjudication of disputes relating to waqf properties cannot, by itself,
validate the impugned Gazette notification dated 14.08.2003, particularly
when the Waqf Board has failed to place before this Court the any material
or records demonstrating compliance of Sections 4 and 5 of the Waqf Act,
1954.
51. It is true that a waqf validly registered under the earlier law may
not require fresh registration under the 1995 Act by virtue of the saving
provision contained in Section 43. However, in the absence of any material
showing that the subject properties were duly registered under the earlier
law or that the statutory requirements for their recognition as waqf
properties were otherwise satisfied, the mere assertion that the properties
were included in an old Gazette notification cannot, by itself, cure the
absence of the foundational statutory requirement.
52. Further, mere production of the Gazette notification dated
20.12.2001 does not establish that the notification was preceded by a valid
survey, enquiry and consideration of the relevant material. A Gazette
notification is the culmination of the statutory process and it cannot replace
the process itself. Where the very foundation upon which the notification
39
LNA, J
WPNo.35945 of 2025
rests is not produced or absent, the notification cannot be sustained merely
on the ground that it was published in the Official Gazette.
53. In the present case, the Waqf Board has failed to produce any
material demonstrating that the statutory process contemplated under
Sections 4 and 5 of the Waqf Act, 1954 was completed before the Gazette
notification dated 20.12.2001 was issued. Mere assertion of the contention
of the Waqf Board that prescribed procedure has been followed prior to
issuance of the impugned Gazette notification is untenable and
unacceptable in the light of the fact that the Waqf Board failed to place
before this Court the survey report of the Commissioner, forwarding of
such report to the Waqf Board, consideration of the report by the Board,
any proof of the alleged proclamation/beat of tom tom, the consideration of
objections, if any, received, or the registration particulars of the subject
waqf properties, nor any contemporaneous material evidencing compliance
with the statutory procedure. The silence of the Waqf Board on these
material aspects assumes significance, particularly when the entire
statutory basis for treating the subject properties as waqf properties is
under challenge.
54. A Co-ordinate Bench of this Court has also taken a similar view in
W.P.No.447 of 2007, by order dated 18.09.2024, wherein the requirement
40
LNA, J
WPNo.35945 of 2025
of compliance of the statutory procedure preceding the Gazette notification
was considered.
55. All the judgments of the Hon'ble Supreme Court referred to supra
reinforce the principle that the statutory procedure prescribed under the
Waqf Act cannot be bypassed and that mere publication of a notification,
without establishing compliance of the mandatory procedural
requirements, cannot confer validity upon the same.
56. Thus, it has to be concluded that the mandatory procedure under the
provisions of the Waqf Act, 1954, before issuance of the notification has
not been complied with.
57. Accordingly, this issue is answered.
Issue No.5 :-
58. In view of the aforesaid discussion, the reliance placed by the
learned Standing Counsel for the Waqf Board on various judgments does
not advance the case of the Waqf Board. None of the decisions relied upon
by learned Standing Counsel for Waqf Board dispensed with the
requirement of establishing that the statutory procedure preceding the
impugned notification was actually followed. The burden was upon the
Waqf Board, being the authority seeking to sustain the notification, to
place the relevant records/material papers before this Court evidencing that
41
LNA, J
WPNo.35945 of 2025
there is compliance of the procedure contemplated under the Act, but, it
failed to do so, thereby, rendering the impugned notification unsustainable.
59. For the aforesaid reasons and discussion, and in the light of the
judgments of the Hon'ble Supreme Court referred to supra, and further,
having regard to the failure of the Waqf Board to establish compliance
with the mandatory statutory procedure preceding the impugned
notification, this Writ Petition deserves to be allowed.
60. Accordingly, the Writ Petition is allowed and the impugned
Gazette Notification No.46-A, dated 20.12.2001, insofar as it relates to the
subject properties of the petitioners, is hereby set aside.
61. Miscellaneous petitions pending, if any, shall stand closed. No
costs
___________________________________
LAXMI NARAYANA ALISHETTY, J
Date:15.09.2026
Note:
LR copy to be marked.
B/o
dr