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R. Subbiah, J.—This writ petition has been filed seeking for issuance of a writ of Certiorarified Mandamus to call for the records dated 21.09.1961 pertaining to the taking away of the landed properties belonging to the petitioner/Pallivasal and issuing Ryotwari pattas to the encroachers of the petitioner''s properties, and to quash the same.
The petitioner viz., Nawab Wallajah Sahib Pallivasal is represented by its Secretary viz., Mohamed Musthafa, who is one of the members of the Committee constituted by the 4th respondent viz., Tamil Nadu Wakf Board, in the year 2009 to administer the petitioner/Pallivasal. He has been selected as the Secretary of the petitioner/Pallivasal, on the demise of his predecessor namely one Mr. Kadar Batcha S/o. Mohideen Meeran. Now, he has filed the present writ petition in the capacity of Secretary to the petitioner/Pallivasal, challenging the proceedings of the 2nd respondent dated 21.09.1961, stating that by proceedings dated 21.09.1961, the 2nd respondent has issued ryotwari pattas to the encroachers of the properties belonging to the petitioner/Pallivasal, under the Tamil Nadu Estates (Abolition and Conversion into Rayotwari) Act, 1948 (Tamil Nadu XXVI of 1948). In other words, it is the sum and substance of the case of the petitioner/Pallivasal, that the properties of the petitioner/wakf/pallivasal cannot be taken away under the Tamil Nadu Estates (Abolition and Conversion into Rayotwari) Act, 1948, and ryotwari pattas cannot be issued to the encroachers. Hence, according to the petitioner/Pallivasal, by quashing the proceedings of the 2nd respondent dated 21.09.1961, a direction may be given to the official respondents to make necessary corrections in the revenue records by entering the name of the petitioner/pallivasal in respect of the subject lands.
The factual aspects, which lead to file the present writ petition, as culled out from the affidavit filed in support of this writ petition, are as follows:--
"3-1. During 16th Century, Nawab of Carnatic had dedicated the landed properties comprised in the villages namely Karuvelankulam and Tulukkarkulam in Tirunelveli District to the petitioner/Pallivasal, which was a religious institution formed for the welfare of the people who belong to muslim community. The Fair Inam Register maintained by the Inam Commissioner in the year 1865, shows that Karuvelankulam Village and Thulukkarkulam Village stand in the form of Title Deed Nos. 276 & 408 respectively and the said villages were dedicated for the support and maintenance of the petitioner/Pallivasal. While so, during the year 1905, one Adhambava Rawather, Vavukkani Beevi and Mahamedukani Beevi entered into a deed of partition in respect of the subject lands, as if those lands belonged to their forefathers. The said partition deed is a false document created by them in order to grab the properties of the petitioner/Pallivasal in Karuvelankulam. While so, after the abolition of Inam system under the Tamil Nadu Estates (Abolition and Conversion into Rayotwari) Act, 1948 (in short "Act 26/1948"), the legal heirs of the above said three persons misrepresented before the Assistant Settlement Officer and with his collusion, they got Ryotwari Pattas in respect of the subject lands.
3-2. According to the petitioner, the petitioner/Pallivasal was not put on notice by the 2nd respondent/Assistant Settlement Officer in the proceedings conducted by him for granting ryotwari pattas in the year 1961, in respect of the subject lands. After the said Mr. Mohamed Musthafa taking charge as Secretary of the Managing Committee of the petitioner/Pallivasal in the year 2009, the Committee has been taking serious steps to set right the titles of the properties belonging to the petitioner/Pallivasal, and in the said process, the petitioner/Pallivasal found that some grave illegalities had crept in the landed properties of the petitioner/Pallivasal Karuvelankulam Village during the year 1905 and onwards; hence, they immediately applied for the Encumbrance Certificate for the said landed properties, and the Encumbrance Certificate was also issued by the 7th respondent herein viz., the II Sub-Registrar, Tirunelveli, on 23.05.2014. As per the entries found in the Encumbrance Certificate, the subject landed properties in Karuvelankulam village, which belonged to the petitioner/Pallivasal, were partitioned between one Adhambava Rather, Vavukkani Beevi and Mahamedukani Beevi on 20.03.1905 and registered in the Office of the II Sub-Registrar, Tirunelveli vide Doc. No. 1307 of 1905, and once again another partition was entered between Vavukkani Beevi and Divanmyeen Beevi on 23.12.1917, registered in the office of the II Sub-Registrar, Tiruneveli, in Doc. No. 85 of 1918. On scrutinizing the above mentioned documents, it was ascertained that the said documents had been bogusly created by them, in such a way as though the properties in the said Karuvelankulam village were belonging to their ''forefathers'', which was actually wrong.
3-3. It is further case of the petitioner that during the year 1961, the 2nd respondent-Assistant Settlement Officer was deputed to take away the subject properties belonging to the petitioner/Pallivasal under the Act 26/1948 and thereafter, the ryotwari pattas were issued to encroachers of the subject properties under Act 26/1948. But, according to the petitioner, since the subject properties had been admittedly granted by the Nawab of Carnatic in favour of the petitioner/Pallivasal for the purpose recognized by the Muslim Law, the subject properties had become the properties belonging to the Religious Institution namely the petitioner/Pallivasal. The 2nd respondent did not have any means of accessibility to take away the subject properties from the petitioner/Pallivasal. Since irregularities were found in the revenue records, the present writ petition has been filed by the petitioner/Pallivasal for the relief as stated supra."
Along with the Writ Petition, the petitioner filed M.P.(MD). No. 2 of 2015 seeking to grant interim junction restraining the operation of the impugned proceedings dated 21.09.1961 issued by the 2nd respondent. This Court by order dated 22.06.2015 has granted an interim of order of status quo to be maintained by both sides.
Originally the present writ petition was filed only as against the official respondents viz., respondents 1 to 7. Subsequently, the private respondents viz., respondents 8 to 21 impleaded themselves by filing M.P.(MD). No. 3 of 2015.
A counter affidavit was filed by the private respondents stating that the writ petition filed by Mohamed Musthafa S/o. S.M. Hassan Sahib, as the present Secretary of the petitioner/Pallivasal is not maintainable, as he is not the present Secretary. As per the information given by the Wakf Board, the period of the Interim Administrative Committee comprising six persons is only for the period from 28.11.2013 to 27.11.2014 and the said period of the Committee has not been extended. Hence, the interim Committee for management of the petitioner/Pallivasal automatically ceased on 27.11.2014, on the expiry of the period of the committee. Therefore, on the date of filing the present writ petition, the said Mohamed Musthafa is not the Secretary of the petitioner/Pallivasal and there is no committee to administer the petitioner/Pallivasal; therefore, the said Mohamed Musthafa has no locus standi to file the present writ petition. The private respondents 8 to 21 are in possession and enjoyment of the subject properties for more than six decades. Further, as per Section 32(2)(i) of the Wakf Act, the Tamil Nadu Wakf Board alone is empowered to institute and defend the suits and proceedings relating to Wakf. The petitioner/Pallivasal has no right to initiate any proceedings in this matter. Similarly, the Wakf Board alone is entitled to take measures for the recovery of lost properties of any Wakf as per Section 32(2)(h) of the Wakf Act. Hence, the petitioner/Pallivasal cannot file the writ petition relating to the lands in Karuvelangulam alleging that those properties were Wakf Properties belonging to the petitioner/Pallivasal.
That apart, it is further stated by the respondents the Wakf Board itself cannot initiate any proceedings in respect of a property, in the absence of a notification under Section 5(2) of the Muslim Wakf Act, 1954 notifying the property in the list of Wakf Properties; further, in the absence of particulars of that property in the proforma report that the said property belongs to the said Wakf, any other person namely Mutawalli or a person having interest in the Wakf or worshipper of the Pallivasal cannot maintain any proceedings relating to that property under law. It is further stated by the respondents that the lands in Karuvelangulam Village are admittedly Inam lands. The Inam system was abolished by the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Act 26/1948). As per Section 3 of the said Act, the Inam Lands were taken away and vested with the Government, free of all encumbrances. Therefore, taking over of the subject lands in Karuvelangulam is not by an order of the 2nd respondent dated 21.09.1961, but by the provisions of the Act 26/1948. Therefore, the prayer in the present writ petition itself is not legally sustainable. Further, now the present writ petition has been filed challenging the order dated 21.09.1961 i.e., after more than 54 years; as such there are clear laches on the part of the petitioner; hence, the writ petition is liable to be dismissed on the ground of being barred under limitation. Thus, the respondents sought for dismissal of the writ petition.
The learned senior counsel appearing for the petitioner, by inviting the attention of this Court to the copies of the Fair Inam Register pertaining to the year 1865, submitted that during the year 1687 itself, the landed properties in Karuvelankulam Village were dedicated by the Nawab of Carnatic to the petitioner/Pallivasal, which is a religious institution, for the purpose of support and maintenance of the Pallivasal and it was entered in the Fair Inam Register in the year 1865 itself; and as such the subject properties belong to the petitioner/Pallivasal. While the situation stood thus, a partition deed dated 23.03.1905, registered in the Office of the II Sub-Registar, Tirunelveli in Doc. No. 1307 of 1905, was created by one Adhambava Rawather, Vavukkani Beevi and Mahamedukani Beevi, as if the subject properties belonged to their forefathers. Further, once again on 23.12.1917, another partition deed was entered into between Vavukkani Beevi and Divanmyeen Beevi, in respect of the subject properties and it was registered in the office of the II Sub-Registrar, Tiruneveli, in Doc. No. 85 of 1918. According to the petitioner, the said Partition Deeds were false documents and created by the private respondents for the purpose of grabbing the properties.
It is further submission of the learned senior counsel for the petitioner that after abolition of the Inam system, by the Tamil Nadu Estates (Abolition and Conversion into Rayotwari) Act, 1948 (Act 26/1948), the Assistant Settlement Officer took initiatives to acquire inam properties and the Government issued G.O. Ms. No. 2302, dated 01.09.1951, notifying the subject properties for acquisition. While so, by producing the said bogus partition deeds, the said Adhambava Rather, Vavukkani Beevi and Mahamedukani Beevi made representations to the Assistant Settlement Officer requesting not to acquire the subject properties, stating that the subject properties belong to them. Thereafter, pursuant to the taking over of the subject properties, the Assistant Settlement Officer initiated proceedings for issuance of ryotwari patta and the legal heirs of the said Adhambava Rather, Vavukkani Beevi and Mahamedukani Beevi approached the Assistant Settlement Officer and got ryotwari pattas in their favour. In this regard, the learned senior counsel appearing for the petitioners submitted that when the subject properties being wakf properties, the 2nd respondent/Assistant Settlement Officer cannot take away the properties and issue ryotwari pattas to the encroachers. Further, the 2nd respondent/Assistant Settlement Officer, while issuing notice to the various encroachers of the subject properties which belong to the petitioner/Pallivasal, did not issue any notice to the petitioner/Pallivasal. Only in the year 2009, while the management of the petitioner/Pallivasal was taking serious steps to set right the titles of the properties belonging to the petitioner/Pallivasal, it was found that some illegalities had crept in the revenue records in respect of the landed properties of the petitioner/Pallivasal from the year 1905 onwards. Therefore, the present writ petition has been filed for the relief as stated supra.
In this regard, the learned senior counsel appearing for the petitioner has also invited the attention of this Court to the order dated 29.10.1968 passed by the Board of Revenue/Commissioner for Land Revenue, Prohibition, Excise and Settlement of Estates, in the appeal which had been filed by one Shah Ali Abbas Khan Sahib under Section 7(d) r/w Section 39(6) of the Act 26/1948 against the treatment of the villages Karuvelangluam and Thulukkarkulam in Tirunelvali District as one falling under Section 38 of the said Act, and submitted that in the said proceedings, the Commissioner of Land Revenue has clearly held that as per the Fair Inam Register, the lands in villages viz., Karuvelankulam and Tulukkarkulam in Tirunelveli District are inam lands endowed to the Pallivasal and not to any individual or private person.
Apart from that, the learned senior counsel appearing for the petitioner has also invited the attention of this Court to the judgment passed by the Subordinate Judge, Tirunelveli, on 07.11.1972, in O.S. No. 31 of 1971 which was filed by the very same Shab Ali Abbas Khan against the Wakf Board, and submitted that even in the said suit, the Trial Court has rendered a finding that the lands in Karuvelankulam and Tulukkarkulam in Tirunelveli District have been notified as Wakf properties. Thus, by relying upon the said judgment passed by the Subordinate Judge, Tirunelveli, the learned senior counsel appearing for the petitioner submitted that it is very clear that the subject properties were wakf properties and once it is wakf property, it is always a wakf property. When that being so, the wakf property cannot be taken away by the Assistant Settlement Officer under the Act 26/1948 and issue ryotwari pattas to the encroachers.
The learned senior counsel for the petitioner would further invite the attention of this Court to the proceedings of the Revenue Divisional Officer dated 28.03.2014 and submitted that from the said proceedings it is seen that Tastick allowance is being paid to the petitioner/Pallivasal continuously under Section 38(1) of the Act 16/1948.
Further, according to the learned senior counsel appearing for the petitioner, though 54 years have passed ever since the issuance of ryotwair pattas to the encroachers, the present writ petition is not hit by laches. In this regard, the learned senior counsel appearing for the petitioner has also invited the attention of this Court to Section 107 of the Wakf Act and submitted that Limitation Act, 1963 will not apply in respect of recovery of wakf properties. Similarly, the learned senior counsel appearing for the petitioner by inviting the attention of this Court to Section 104(a) of the Wakf Act submitted that if any movable or immovable property is given or donated by any person to a wakf, then it will become wakf property; when that being the legal position, the order passed by the 2nd respondent dated 21.09.1961 is liable to be set aside.
In support of his contention, the learned senior counsel appearing for the petitioner has also relied upon the judgment reported in Mandal Revenue Officer Vs. Goundla Venkaiah and Another, . The factual aspects of that case would show that in the year 1990, the Mandal Revenue Officer filed an application before the Special Tribunals constituted under the Land Grabbing Act for recovery of the possession of 5 acres land, by alleging that the same was illegally occupied by one Gonda Mallaiah, respondent therein. During the pendency of the application, the said Gonda Mallaiah died and thereafter, his legal heirs were brought on record and they pleaded that they have acquired title by adverse possession because they are in possession of the land and cultivating the same for the last more than 50 years without any interference or obstruction. By an order dated 27.5.1997, the Special Tribunal allowed the application of the Mandal Revenue Officer declaring that the schedule land is government land. The appeal filed by the legal heirs of the Gonda Mallaiah was also dismissed by the Special Court by detailed order dated 18.08.1998. But, on further appeal, the Division Bench of the Andhra Pradesh High Court did not disturb the concurrent finding recorded by the Special Tribunal that the schedule land is Government land, but set aside the orders passed by the Special Tribunal on the premise that the respondents therein have acquired title by adverse possession and as such they cannot be evicted by being treated as land grabbers. Aggrieved over the same, the Mandal Revenue Officer filed an appeal before the Hon''ble Supreme Court and the Hon''ble Supreme Court has allowed the appeal and set aside the order of the Division Bench of the Andhra Pradesh High Court.
By relying upon the above said judgment, the learned senior counsel appearing for the petitioner submitted that in the instant case also, though the private respondents are in possession of the subject properties for more than 50 years, it cannot serve as a ground for them to claim right over the subject property, as the private respondents are in illegal occupation of the subject lands belonging to the petitioner/Pallivasal.
In this regard, the learned senior counsel appearing for the petitioner has relied upon another judgment reported in 2011(6) MLJ 731 (M. Govindan v. Special Commr. & Commr. Of Land Administration), and submitted that under Section 7(c) of the Act 26/1948, the Special Commissioner has power to cancel or set aside any order passed by the lower authority and the Board can exercise the power suo motu without an application for revising the order of the lower authority. When that being the position, according to the learned senior counsel for the petitioner, the question of applying limitation does not arise in this case.
Per contra, the learned counsel for the respondents submitted that as per Section 32(2)(i) of the Wakf Act, only the Wakf Board is empowered to initiate suit/proceedings relating to the wakf property. Therefore, the petitioner/Pallivasal has no right to initiate the present writ petition. Under Section 32(2)(h) of the Wakf Act, the Wakf Board alone is entitled to take measures for recovery of the wakf properties. Therefore, the petitioner/pallivasal cannot file the present writ petition relating to the subject lands, alleging that those properties are wakf properties belonging to the petitioner/Pallivasal.
The learned counsel for the private respondents would further submit that Mr. Mohamed Musthafa S/o. S.M. Hassan Sahib, who has filed the present writ petition representing the Pallivasal, is not the present Secretary of the petitioner/Pallivasal. The period of the Interim Administrative Committee comprising of six persons is only for the period from 28.11.2013 to 27.11.2014 and the said period of the Committee has not been extended. Hence, the interim committee for Management of the petitioner/Pallivasal automatically ceased on 27.11.2014, on the expiry of the period of the committee. Therefore, on the date of filing the present writ petition, the said Mohamed Musthafa is not the Secretary of the petitioner/Pallivasal and there is no committee to administer the petitioner/Pallivasal; therefore the said Mohamed Musthafa has no locus standi to file the present writ petition.
The learned senior counsel appearing for the private respondents would further submit that the Wakf Board itself cannot initiate any proceedings in respect of a property, in the absence of a notification under Section 5(2) of the Muslim Wakf Act, 1954 notifying the subject property in the list of Wakf properties; further, in the absence of particulars of the property in the proforma report that the said property belongs to the said Wakf, another person namely Mutawalli or a person having interest in the Wakf or worshipper of the Pallivasal cannot maintain any proceedings relating to that property under law.
The learned senior counsel for the private respondents has also invited the attention of this Court to the Gazette Notification issued under Section 5(2) of the Muslim Wakfs Act, 1954, dated 13.05.1959 and submitted that a perusal of the documents would clearly show that the lands in Karuvelankulam Village and Thulukkarkulam Village have not been shown either in notification under Section 5(2) or under proforma report; therefore, even Wakf Board does not have any right to initiate the present proceedings under the present writ petition.
Further, the learned senior counsel appearing for the respondents submitted that the petitioner had placed reliance on the order dated 29.10.1968 passed by the Board of Revenue/Commissioner for Land Revenue, Prohibition, Excise and Settlement of Estates, and the judgment passed in O.S. No. 31 of 1971 by the Subordinate Judge, Tirunelveli, dated 07.11.1972; but, a careful perusal of the said orders would go to show that the said proceedings are only pertaining to receipt of compensation/tastick allowance. The question that was decided by the Board of Revenue in the said proceedings as well as the Trial Court in the said suit is as to whether the Inam is in favour of the institution namely the petitioner/Pallivasal so as to receive the compensation and Tastick Allowance by it or it is a private inam granted in favour of the forefathers of the said Shan Ali Abbas Khan, so as to receive the compensation and tasdik allowance by him; for the purpose of deciding that issue, the documents relating to the grant of Inam had been considered by the 1st respondent/Board of Revenue as well as by the learned Subordinate Judge and it was held by them that the grant of Inam was not to the family of the said Shah Ali Abbas Khan, but in favour of the petitioner-Pallivasal; thus, the contention of the said Shah Ali Abbas Khan was rejected by the 1st respondent/Board of Revenue as well as by the Trial Court. Therefore, the proceedings of the Board of Revenue as well as the judgment passed in O.S. No. 31 of 1971 by the Subordinate Judge, Tirunelveli, dated 07.11.1972, will not be helpful to the petitioner/Pallivasal. On the other hand, the fact that petitioner/Pallivasal is receiving the Tasdik Allowance itself would go to show that they had the knowledge that the subject land was vested with the Government under the Act 26/1948 and subsequently the ryotwari pattas were also issued to various persons as early as in the year 1961 itself. Therefore, now after 54 years, the petitioner/Pallivasal cannot question the action initiated by the Government.
Further, the learned senior counsel for the private respondents submitted that in the present writ petition, what is challenged is not the order passed by the 2nd respondent, but it is only a descriptive memoir of the survey map No. 113 relating to Karuvelankulam village and the annexed document at page No. 70 along with that memoir, which is only a copy of the settlement register and the same is not an order, but only a register prepared in pursuance of the orders passed in Ryotawari Settlement Proceedings; therefore, the same cannot be considered as an order passed by the 2nd respondent to take over the land; and as such, the question of quashing the register containing the survey number and map is not legally sustainable.
That apart, according to the learned senior counsel for the respondents, having failed to take steps to quash the notification issued in the year 1951 taking away the land in Karuvelankulam Village and Thulukkarkulam Village under Act 26/1948, now the petitioner/Pallivasal cannot challenge the subsequent proceedings, for issuance of ryotwari pattas, that too after 54 years. Now, during this period of 54 years, so many transactions have taken place and many government buildings and authorised private buildings have been constructed in the subject lands and the entire topography of the subject lands has been changed now. Therefore, according to the learned senior counsel for the private respondents, the present writ petition is purely hit by limitation. In this regard, the learned counsel for the respondents has relied upon the judgment reported in Jt. Collector Ranga Reddy Vs. D. Narsing Rao .
Keeping the submissions made on either side, I have carefully perused the materials available on record.
It is the case of the petitioner that during the year 1687, Nawab of Carnatic had dedicated the landed properties comprised in the villages namely Karuvelankulam and Tulukkarkulam in Tirunelveli District, in favour of the petitioner/Pallivasal, which is a religious institution formed for the welfare of the people who belong to muslim community. In this regard, the learned senior counsel appearing for the petitioner relied upon the entry made in the Fair Inam Register maintained by the Inam Commissioner pertaining to the year 1865, which shows that Karuvelankulam Village and Thulukkarkulam Village were dedicated for the support and maintenance of the wakf.
But, from the records it is seen that subsequently, during the year 1905, one Adhambava Rawather, Vavukkani Beevi and Mahamedukani Beevi entered into a deed of partition in respect of the subject lands, as if those lands were belonging to their forefathers; thus, the possession of the subject properties in question went to the hands of the said Adhambava Rawather, Vavukkani Beevi and Mahamedukani Beevi as early as in the year 1905 itself. While so, after the abolition of Inam system under the Tamil Nadu Estates (Abolition and Conversion into Rayotwari) Act, 1948 (in short "Act 26/1948"), the Government issued G.O. Ms. No. 2302 dated 1.9.1951 notifying the subject properties for acquisition. Thereafter, in the year 1961, the legal heirs of the above said three persons represented before the Assistant Settlement Officer and they got Ryotwari Pattas in respect of the subject lands. Now, the petitioner/Pallivasal has filed the present writ petition challenging the proceedings dated 21.09.1961 claiming that the said proceedings is relating to the taking away of the lands belonging to the petitioner/Pallivasal.
It is the main submission of the learned senior counsel for the petitioner that since subject properties belong to the petitioner/Wakf/Pallivasal, whatever the transactions that had subsequently taken place between the third parties will not be binding on the wakf, since wakf property cannot be taken away. Therefore, according to the learned senior counsel for the petitioner, the subsequent partition deeds entered into between the third parties cannot have any significance in this matter; thus, according to the learned senior counsel for the petitioner, by quashing the proceedings of the Assistant Settlement Officer dated 21.09.1961, a direction has to be given to the official respondents to make necessary correction in the revenue records by mentioning the name of the petitioner/Pallivasal as owner of the subject property.
But, as contended by the learned senior counsel appearing for the private respondents, the proceedings of the Assistant Settlement Officer dated 21.09.1961 is only a descriptive memoir of the survey map No. 113 relating to Karuvelankulam village and the notification was issued to take away the land. Actually, by notification under G.O. No. 2302, Revenue, dated 01.09.1951, the subject properties were taken away by the Government and the said properties vested only with the Government. But, the said notification was not challenged by the petitioner/Pallivasal at the relevant point of time. Pursuant to taking away the subject properties by the Government, the Assistant Settlement Officer had also initiated proceedings to issue ryotwari pattas to various persons.
According to the learned senior counsel for the petitioner, while initiating proceedings for issuance of ryotwari patta to various persons, the Assistant Settlement Officer had not issued any notice to the petitioner/Pallivasal; further, since the subject landed properties in Karuvelankulam Village belong to the petitioner/Pallivasal, the Assistant Settlement Officer ought to have issued notice to them.
But, in my considered opinion, under the Act 26/1948, the subject landed properties automatically vested with the Government. Thereafter, proceedings were initiated by the Assistant Settlement Officer to issue ryotwari pattas to the persons, who are making claims before him. Since the subject landed properties automatically vested with the Government, the question of issuing notice to the Wakf or alleged owner in respect of the Inam land, does not arise in this case.
Further, I find from the perusal of materials on record that the petitioner/Pallivasal was receiving Tastick Allowance under Section 38(1) of the Act 26/1948. When the petitioner/Pallivasal had admitted that they are receiving Tastick allowance, now the present contention of the petitioner/Pallivasal that only after the year 2009, they came to know about the ryotwari patta proceedings initiated during 1961, cannot be accepted. Further, I find that the possession of the subject properties was also not with the petitioner/Pallivasal from the year 1905 onwards.
The petitioner/Pallivasal relied upon the order dated 29.10.1968 passed by the Board of Revenue/Commissioner for Land Revenue, Prohibition, Excise and Settlement of Estates, and the judgment passed in O.S. No. 31 of 1971 by the Subordinate Judge, Tirunelveli, dated 07.11.1972; but a perusal of the said proceedings, I find the inam was granted only to the Wakf.
But, having failed to challenge the notification dated 01.09.1951 and having kept quite during the proceedings of issuance of ryotwari pattas, now after 54 years, the petitioner/Pallivasal cannot question the same, because it is clearly hit by laches. Moreover, subsequently, various transactions had taken place and as contended by the learned senior counsel for the private respondents, now various government buildings and other buildings have been constructed in the subject properties. No proper explanation has been given by the petitioner/Pallivasal for the laches. On this sole ground alone, the writ petition is liable to be dismissed.
In this regard, a reference could be placed in the judgment of the Hon''ble Supreme Court reported in Jt. Collector Ranga Reddy Vs. D. Narsing Rao , wherein it has been held as follows:--
"...... By the impugned Notice dated 31.12.2004 the suo motu revision power under Regulation 166B referred above is sought to be exercised after five decades and if it is allowed to do so it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties.
In the light of what is stated above we are of the view that the Division Bench of the High Court was right in affirming the view of the learned single Judge of the High Court that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of law.
......
........... Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority."
A reading of the above said dictum would show that even if the authority is having suo motu power to review the order passed by the lower authority, the same has to be exercised only within reasonable a period of time. In the instant case, the period of 54 years cannot be said to be a reasonable period by any stretch of imagination. Therefore, the writ petition is liable to be dismissed on the ground of laches.
It is another submission of the learned senior counsel for the private respondents that under Section 32(2)(i) of the Wakf Act, the Wakf Board alone is empowered to institute recovery proceedings relating to the wakf property. In support of this contention, he has also relied upon the judgment reported in The Secretary, Tamilnadu Wakf Board Vs. Kancheepuram Oili Mohamed-Pettai Labbai Jumma Masjid and Others, . The learned senior counsel for the private respondents has further submitted that as per Section 32(2)(h) of the Wakf Act, the Wakf Board alone is entitled to take measures for the recovery of lost properties of any wakf; and therefore, the present writ petition filed by the petitioner/Pallivasal is not maintainable before this Court.
But, it is the reply of the learned senior counsel appearing for the petitioner that though the writ petitioner Mohamed Musthafa is not the Secretary of the Wakf on the date of filing the present writ petition, he will come within the purview of "person interested in the wakf" as defined under Section 3(k) of the Wakf Act and as such, he is entitled to initiate proceedings on behalf of the wakf.
But, I find that the present writ petition has been filed by one Mohamed Musthafa S/o. S.M. Hassan Sahib, only in the capacity of Secretary of the petitioner/Pallivasal and not in the capacity of "person interested in the wakf" within the meaning of Section 3(k) of the Wakf Act. But, on the date of filing the writ petition, the said Mohamed Musthafa was not the Secretary of the Pallivasal/Wakf. Therefore, the submission made by the learned senior counsel appearing for the private respondents that the said Mohamed Musthafa has locus standi to initiate the present writ proceedings cannot be accepted on the factual background of this case.
Similarly, it is submitted by the learned senior counsel for the private respondents that the subject property was not notified as wakf property under Section 5(2) of the Wakf Act, and as such the Wakf Board itself cannot initiate the proceedings. But, I find that in the Fair Inam Register pertaining to the year 1856 itself, an entry was made to the effect that the subject properties belong to the wakf, though it was not notified as wakf property under Section 5(2) of the Muslim Wakf Act, 1955. Hence, as to whether the Wakf Board is empowered to initiate the proceedings to recover the property or not, cannot be decided in this writ petition, since the said question has to be decided only based on the evidence. There is disputed question of facts. Hence, I am not inclined to render any finding on this aspect, as this Court is not conducting any roving enquiry, in the present writ petition filed under Article 226 of the Constitution of India.
In the result, for the foregoing reasons, the writ petition is liable to be dismissed on the of ground of laches. Accordingly, the writ petition is dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.