WP 12548 2020
WP 12548 2020
WP 12548 2020
RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
W.P.No.20707 of 2018
Between:
M/s.Sai Pawan Estates Pvtd. Ltd. and
others.
…Petitioners.
And
1. The Telangana State Wakf Board, rep. by its Chief Executive
Officer, Nampally, Hyderabad and others.
…Respondents
W.P.No.9709 of 2020
Between:
Katikaneni Praveen Kumar, S/o.late
K.Krsihna Rao, aged about 50 years,
Occu:Business, R/o.1st Floor, above Punjab
National Bank, Manovikas Nagar,
Hasmathpet Road, Old Bowenpally,
Secunderabad – 500009.
… Petitioner
And
1. State of Telangana, rep. by its Principal Secretary,
Revenue Department and others
…Respondents
W.P.No.12548 of 2020
Between:
Katikaneni Praveen Kumar, S/o.late
K.Krsihna Rao, aged about 50 years,
Occu:Business, R/o.1st Floor, above Punjab
National Bank, Manovikas Nagar,
Hasmathpath Road, Old Bowenpally,
Secunderabad – 500009.
… Petitioner
And
1. State of Telangana, rep. by its Principal Secretary,
Minority Welfare Department and others
…Respondents
% 30.03.2021
… Petitioner
And
$ 1. The Telangana State Wakf Board, rep. by its Chief Executive
Officer, Nampally, Hyderabad and others.
…Respondents
< GIST:
? Cases referred
and since common questions of fact and law arise in these three cases,
among:
land; and
wakf property.
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partition final decree dt.26.02.2010 passed by the then High Court for
1958, they, along with others, are absolute owners and possessors of
Dargah Hazrat Salar-E-Auliya and the said Board had written a Letter
Hafeezpet village.
1995 and to set aside the same; and for a direction to the respondents
respectively, and subsequently H.E.H. The Nizam had sold away his
Golconda Estates Private Limited and others, who had all made some
disputing his claim and contending that it was Government land and
land, (ii) to mutate the said land in favour of petitioner and his co-
owners, and (iii) to restrain the respondents from interfering with the
As the Telangana State Wakf Board had also claimed the said
of natural justice and Articles 14, 19, 21 and Article 300-A of the
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void.
Thus the final decree had become final and the decree holders
in the suit in C.S.No.14 of 1958 have became title holders
against the Government in respect of all the items relating to
the suit in C.S.No.14 of 1958.
Supreme Court and it’s claims that the lands were Government lands
was rejected.
Government land, this Court had set aside the same in A.Salivahana
GHMC to grant permission recording that the State had lost its title as
the State; the said order was also affirmed by the Supreme Court in
SLP (C) No.1702 – 1703 of 2021 dt.27.01.2021; and this being the
seventh time the State had lost its claim, the land in Hafeezpet village
8. It is contended that after the State lost its claim for the sixth
1
order dt.27.11.2020 in W.P.Nos.14881 and 14885 of 2020 (DB)
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registered the said land as Wakf land under Section 36 of the Wakf
Act, 1995.
and the Telangana Wakf Board are colluding with each other and
both the Telangana State Wakf Board (respondent no.1 in the said
rival title to the Telangana State Wakf Board in the counter affidavit
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affidavit that the land is ‘Sarkari’ land and that he does not know on
what basis the Telangana State Wakf Board had issued the Gazette
praying that this Court should direct the District Registrar, Ranga
dt.16.06.2020.
applications.
14. Challenging the same, the State of Telangana filed Civil Appeal
within four weeks and gave a direction to this Court to finally dispose
of these Writ Petitions after the pleadings are complete. The Supreme
Court did not express any opinion on the merits of the rival
contentions.
20. We shall deal with the issues raised by the petitioners vis-à-vis
the State of Telangana under Part A and with the issues raised by the
PART - A
The claim of the State of Telangana and its consideration by the Court:
file of the Court of additional Judge, City Civil Court, Hyderabad for
Paigah, who had died in 1902. The said suit was withdrawn and taken
plaint.
holding that this item is available for partition if they are released by
the Government.
was not in consonance with the judgment and the said properties were
Court holding that the decree was in consonance with the judgment.
29. O.S.A. (SR) No.3526 of 2000 was filed by the State against the
contended by the State that the properties are Inam lands, that they
belong to the Government and were not partible. The said O.S.A.(SR)
30. S.L.P. (C) Nos.10622-10623 of 2001 was filed against the order
on 16-07-2001.
failed.
32. So we are not adjudicating in this Writ Petition the title to land
binds the State of Telangana too and we are merely taking note of it
C.S.No.14 of 1958.
34. Can the State of Telangana make such collateral attack and
overcome the adverse finding given by the A.P. High Court about it’s
held:
Court reiterated:
“21. ….When the court has the power to inquire into the facts, apply
the law, render binding judgment, and enforce it, the court has
jurisdiction. Judgment within a jurisdiction has to be immune from
collateral attack on the ground of nullity. It has co-relation with the
constitutional and statutory power of tribunal or court to hear and
2
(2004) 1 SCC 287, at page 291
3
(2020) 6 SCC 557
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37. Also, a decision of the A.P. High Court regarding the lack of
Court of record.
Article 215 shall have all powers of such a court of record including
on the face of the proceedings that the particular matter is within the
4
AIR 1967 SC 1
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40. Keeping these important facts in mind and also the fact that on
six earlier occasions set out above, the claim of the State Government
Telangana.
Contention No.(a)
No.12548 of 2020) that in the pahani for the year 1952-53, land in
has also filed several pahanis for the periods from 1955-56 to 2010-11
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in support of its plea that the State is shown as enjoyer and pattadar of
“Kancha Sarkari”, it cannot be held that the State is owner of the said
land.
5
(2015) 14 SCC 784
6
(1997) 7 SCC 137
7
(1996) 6 SCC 223
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Contention No.(b) :
44. Next it is contended that the subject land is a Jagir, that Jagir
45. We have already referred to the fact that the State had raised a
lands, that they were not partible and to set aside the preliminary
decree on the said basis and the said OSA was dismissed on 7.2.2001
SLP.(C).No.10622-10623/2001 on 16.7.2001.
46. The then State of A.P. had also filed Review Applications
raising this very plea and the same was rejected by a Division Bench
in W.P.No.12548 of 2020)
47. We may also point out that the land in Survey No.80 and 78 of
and had also given consent for passing of final decree by way of
a final decree stage. Suffice it to say that the order under appeal is
unsustainable in law.” (emphasis supplied)
48. It is also not in dispute that SLP (Civil) No.22420 of 2011 filed
dismissed on 26.11.2013.
was a party, it is clear that this point had been urged earlier by the
State in applications filed in the very suit CS No.14 of 1958 and it had
Contention No.(c) :
Schedule – IV. Thus, the State wants to contend that the Schedule in
51. This point was available to the State when it sought amendment
52. Again it could have raised the said issue in OSA (SR)
the said appeal was also dismissed on 17.02.2001 and the same was
dismissed on 16.07.2001.
53. It cannot be contended that this is a new fact entitling the State,
when the suit was instituted; and when its challenge directly to the
Contention No.(d) :
opposes the said compromise. Also the said compromise was in 2010,
which was passed on 28.6.1963, and the State failed to get it set aside.
cannot effect the possession of other parties to the suit and such a
who are not parties to the transaction, that the Court is not
determining the rights of the parties who were claiming the property
lawful.
other decree holders in the suit, but not to the State Government
which had lost its claim for title to land in Hafeezpet Village at the
Contention No.(e) :
decree.
decree would declare rights and liabilities of the parties leaving actual
60. But, there may be situations where the compromise decree itself
the basis of the compromise, in such cases, not only declares the rights
of the parties interested in the properties, but also allots the properties
litigative battle; and in a partition suit when the parties entered into a
exclusive possession of the properties and the same had already been
It held that in such cases, the rights of the parties had fructified and
remains to be done.
necessity for further enquiry; and such a decree did not merely declare
the rights of the several parties interested in the properties but also
and such a compromise decree was not a preliminary decree but it was
8
(2012) 3 SCC 548
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64. Therefore, the plea of the State that no rights would accrue to a
that the petitioners cannot lay a claim on the said property, on the
State Government to raise these pleas since its direct attack on the
Contention No.(f) :
Kazim Nawaz Jung (defendant No.157); that Kazim Nawaz Jung had
acquired right, title and interest of all sharers along with M/s.Cyrus
the defendant Nos.334 and 335; and the internal division had nothing
rights, can institute a civil suit against any person interested to deny
his title or denying his title to such right for declaration of his right
under Chapter VI of the Specific Relief Act, 1963 and the entry in the
declaration.
69. Thus, the decision of the Civil Court on the issue of title is
binding on the revenue authorities and they should amend the record
Court; and since its claim was dismissed even at the stage of
71. We may point out that : (i) for Acs.2.00 in Survey No.80/A
implement the above orders. The said Writ Petitions were allowed on
claim ownership of the said land and refuse to abide by the various
Contention No.(g) :
in possession of the Government and that the petitioner has not filed
No.80/D.
No.500 of 2014 on 04.06.2014 and the sketch plan was amended, and
75. The State cannot refuse to take note of the orders passed by the
77. When the land in Hafeezpet village has been held in the
State Government, it was the duty of the Revenue officials of the State
78. So, the District Collector, Ranga Reddy and his subordinates
and other officials of the State Government cannot still insist about
deliberately did not alter in spite of the said Memo. It amounts to the
Law.
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and 14885 of 2020, this Court had held that the State did not deny that
Contention No.(h) :
the application was between individuals and such orders are not
made over Government land are not valid under law and are null and
void.
82. We have already pointed out that the State had contested the
83. Such conduct is clearly vexatious and shows the scant regard it
has to decisions of this Court and the Supreme Court to which it was a
party.
Contention No.(i)
in List Nos.I, II and III, declaring all the properties held by him,
the sale of suit schedule properties, in 1964 – 67, their decreetal rights
M/s.Cyrus Investments Pvt. Ltd. and the said company was impleaded
as Defendant No.206 in the suit. Thus, Kasim Nawaz Jung and Cyrus
properties.
87. After the death of Kasim Nawaz Jung, his widow, viz.,
the entire land of Hafeezpet Village into equal halves and Sy.No.80/A
about the lands in Hafeezpet Village in the lists he gave to the Union
Book’ does not make any difference, and it cannot be said that he had
Therefore, this plea of the State is made only to mislead this Court and
Contention No.(j) :
relief.
95. That apart, (i) in Application Nos.239 and 517 of 2009 final
Village.
96. The State is fully aware of the above final decrees passed in
Court by saying that there is no final decree. Its stand is not bona
fide.
Contention (k):
the observations made by the Supreme Court in the said case relating
in C.S.No.14 of 1958 are binding on this Court and this Court should
follow them.
9
2018 (6) ALD 160 (DB)
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98. It is not in dispute that the above order in M/s. Trinity Infra
reliance on them.
100. We may also point out that the said order in M/s. Trinity Infra
not Hafeezpet Village. Also as pointed out above there are already
101. We may also note that the counter affidavits of the State
appearing for it did not make any submissions about it’s case vis-à-vis
these parties.
102. It thus appears to us that the contest between the State and the
103. We may also point out that in Application No.19 of 1973 and
stand that it was prepared to deliver possession of the said lands, but
of 2020). Having taken such a stand, it is not open to the State to take
advantage of the efflux of time between 1994 and 2021 and increase
it.
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State of Telangana and its Officers referred to in para-2 (ii) and hold
PART - B
land and appointed her peer Hazrat Qasim Bin Abdullah Sulthan-us-
State; and after satisfying about the existence of the Dargah and Wakf
issued by the A.P State Wakf Board officially recognizing the Wakf
106. According to the above respondents, the said Wakf along with
Section 36 of the Wakf Act, 1995 and the said facts were incorporated
and the Wakf property were notified in the Telangana and Andhra
Wakf Act, 1995. It is contended that under Section 36, the Wakf
Board has power to register a Wakf property, and it had followed the
remedy under Section 83 of the Wakf Act, 1995 and the Writ Petition
is not maintainable.
therein.
113. There are several circumstances, which we shall point out, for
10
2020 (3) ALD 528 (DB)
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No.33). All of them got 7/192 share from their father Zafar Jung and
1/384 share from their deceased sister Noorunnisa Begum, and thus
WP.No.12548 of 2020).
Senior Counsel appearing for the Telangana Wakf Board and Sri
Sy.No.80 of Hafeezpet village from her father and she had created a
119. They admitted that she did not disclose the fact that she got
120. No reason was assigned why she did not mention it in the
because the Court would have then enquired into it and would have
(C) Smt.Muneerunnisa Begum had not got any final decree in C.S.No.14 of
1958 allotting Ac.140 in Sy.No.80 of Hafeezpet village to her though she was
given 15/384 share in the properties which are subject matter of C.S.No.14 of
1958
Telangana Wakf Board and it’s allies, supposed to have got right in
C.S.14 of 1958, and the Telangana Wakf Board is claiming the said
they cannot attack the orders in C.S.No.14 of 1958 at all. They are
estopped from doing so. When she herself did not question the orders
in C.S. No.14 of 1958, the Wakf Board and it’s allies cannot question
them.
even before the filing of C.S.No.14 of 1958 for partition, she could
(D) The Wakfnama dt.1.1.1955 does not contain her signature but only her
thumb impression though she put her signature in a later regd.sale deed
dt.4.7.1966
125. Also, the Wakfnama dt.01-01-1955 does not bear the signature
she affixed her thumb mark only because her hands got burnt
126. Learned counsel for petitioner had filed (at pg.410-442 of the
not passed, and she is selling the shares she secured in C.S.No.14 of
1958 to the purchasers after taking Rs.50,400/-. In this sale deed, she
128. Moreover, the recitals in the regd. sale deed dt.4.7.1966 show
that she had sold her entire share allotted as per the preliminary decree
in C.S.No.14 of 1958 even before she had got a final decree. So she
the share in the land in Hafeezpet Village also, but the sale deed does
130. So, the Telangana State Wakf Board cannot say that the land
131. Learned counsel for the Telangana State Wakf Board and it’s
which did not show that any portion of Sy.No.80 was Wakf property
or was in possession of the Dargah. They could not point out any
material for the last 60 years to show the possession of the said land
by the Dargah.
132. It is not in dispute that the Chief Executive Officer of A.P. State
Ranga Reddy District for conduct of joint survey along with Wakf
134. The said Writ Petition was allowed on 26-10-2016 without any
Board officials and boundaries were fixed; later there was another
and demarcation was done; and a sketch was then supplied vide
were not even aware of the location of the Ac.140.00 of land allegedly
137. When the location of this Ac.140.00 was not known to these
there was any Wakf of this land at all because there was never any
(F) The surveys under the Wakf Act,1954 and Wakf Act,1995 did not take
note of Acs.140.00 of land in Sy.No.80 of Hafeezpet village as a wakf property
138. We may point out that the Wakf Act, 1954 was in vogue when
Begum.
140. Under Section 25 the Wakf Board was enjoined to register any
Wakf.
142. The Wakf Act, 1954 was repealed by the Wakf Act, 1995
Section 4 of the Wakf Act, 1995 and under sub-Section (1) of Section
a survey of Wakfs in the State. If such a survey was done, why the
respondents.
(G) Non conduct of inquiry under sub-section (7) of Sec.36 of the Wakf
Act,1995 vitiates the registration of the subject land as Wakf property on
13-12-2013 under sec.36 of the said Act.
146. Thus, the A.P. State Waqf Board should have verified whether
property, and why for the previous 58 years, no attempt had been
what sort of enquiries the A.P State Wakf Board did, before
148. Except saying that enquiries were made and proper procedure
there were any enquiries done at all by the A.P State Wakf Board
1995.
11
MANU/AP/0743/2016 = (2016) 6 ALD 752
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consider Section 36 of the Wakf Act, 1995 and had held that under
sub-section (7) of Section 36, it was incumbent on the part of the A.P.
as a wakf property.
Board inviting objections and the Writ Petitioner therein had filed
such objections specifically stating that there was a Civil Court decree
Wakf Board. This Court held that the Wakf Board clearly violated
sub-section (7) of Section 36 of the Act and that the Wakf Board
151. In the facts of the present case also, it is our opinion that
for more than 50 years, the A.P.State Wakf Board could not have
possible that not just private properties, but any public property such
done in accordance with law by the A.P. Wakf Board under Sub-
position of the A.P. Wakf Board, could have, on the basis of material
Wakf Act, 1954 and it directs that in the case of a Wakf created before
the commencement of the Wakf Act, 1995, like the Wakf created
the date of commencement of the Wakf Act, 1995, i.e., within three
time limit was not adhered to while registering the Wakf created
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13.12.2013, eighteen years after the Wakf Act, 1995 came into force.
(I) Sec.107 or Sec.108 A of the Wakf Act, 1995 are not attracted
allies that Section 107 of the Wakf Act, 1995 makes Limitation Act,
Wakf Act, 1995, the said Act overrides any other statute which is
inconsistent with it; and therefore the delay in registration of the Wakf
matter.
etc., under the Act in relation to Wakf property. But when the Wakf
and Section 108A cannot be invoked. While we are not saying that the
the Wakf is not important, and property which belongs to Wakf will
159. In our opinion, Smt. Muneerunnisa Begum or her father are not
160. Smt. Muneerunnisa Begum did not even apply for a final
decree for allotment of this Ac.140.00 to her share as per her 15/384
1958.
161. When she had no right in the land, she cannot create a Wakf
163. Shanaz Begum (10 supra) also arose out of C.S.No.14 of 1958
District.
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filed by third parties to the suit had been allowed by a common order
O.S.A.Nos.52 to 59 of 2004.
Court set aside the order of the Division Bench on 05.03.2014 and
166. It was specifically contended by the third parties, who had filed
the claim petitions, that they were in possession and enjoyment of the
title had been granted pattas by the Revenue Secretariat of H.E.H. The
Nizam of Hyderabad in 1947 itself; that this land did not belong to
Kurshid Jah Paigah or his legal heirs or the State Government, and it
was not available for partition to the legal heirs of Kurshid Jah. Their
without impleading the occupants and pattedars of the said land, that it
Court.
167. This Court ultimately agreed with the contentions of the third
without impleading them and the said orders were collusive in nature.
It held that the land in Hydernagar Village was Jagir land, but prior to
Secretariat of H.E.H. The Nizam in 1947; that title to this land passed
to the cultivating ryots prior to 1948 itself and they had validly
conveyed title to the claim petitioners. It also held that the land in
Hydernagar Village did not vest in the State Government after the
101 of C.P.C., the executing court can also consider the question
the Court or a party. It held that the decree holders failed to show that
1958 as null and void and even the preliminary decree dt.28.06.1963
Begum (10 supra) were specifically made only in the context of the
170. Moreover, in the said case, there was a direct attack on the
preliminary decree and other orders passed in regard to the said land
171. But, in the instant case, there is only a collateral attack, which is
impermissible.
172. Therefore, none of the respondents can rely upon the judgment
(L) The Writ Petitions are not barred by existence of alternative remedy
under Sec.83 of the Wakf Act,1995
and that the present Writ Petitions are therefore not maintainable. The
175. We do not agree with this contention for more than one reason.
fight between the petitioners, the State Government and the Telangana
Wakf Board.
177. While the Wakf Tribunal constituted under the Act can decide
circumstances of the case where the State and the Wakf Board both
178. That apart, judicial review is part of the basic structure of the
implicitly exclude judicial review by the High Court under Article 226
12
2011 (1) ALD 61 (SC)
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one under Sec.36 of the Wakf Act, 1995, in the current Constitutional
scheme.
Constitution of India where (i) the Writ Petition has been filed for
challenged.
Court held that merely because one of the parties to the litigation
bar for entertaining a Writ Petition even if the same arises out of a
13
(1998) 8 SCC 1
14
(2004) 3 SCC 553
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fact.
Court will not be justified in requiring the party to seek relief by the
declared:
15
(2011) 15 SCC 383
16
(2008) 12 SCC 500
17
(2014) 1 SCC 603
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others18, the Supreme Court held therein that when a petition involves
disputed questions of fact and law, the High Court would be slow in
however it is only a rule of self-restraint and not a hard and fast rule;
circumstances where the High Court finds that the action of the State
18
Civil Appeal No.1600 of 2020 decided on 14.02.2020 by a Three Judge Bench headed by Chief
Justice of India, Justice B.R.Gavai and Justice Suryakant
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184. In Anis Fatima Begum (12 supra), cited by learned counsel for
jurisdiction of the civil court or High Court under Article 226 was
ousted.
Tribunal and the Civil Court should not entertain any matter.
185. There are other decisions which deal with exclusion of Civil
19
(2010) 8 SCC 726
20
(2014) 16 SCC 51
21
(2014) 16 SCC 38
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186. In fact, the decision in Anis Fatma Begum (12 supra) was
Faseela M (21 supra) and the broad proposition laid down in Anis
Fatma Begum (12 supra) to the effect that all matters pertaining to
wakfs should be filed before the Wakf Tribunal only and should not
law.
per incurium by the Supreme Court. Even the said case dealt with
only the issue exclusion of jurisdiction of the Civil Court and there is
22
(2019) 4 SCC 698
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the light of the day for the next 50 years after its alleged execution
respondents only after the State Government lost S.L.P. (C) No.22420
reasons :
behalf of the Telangana State Wakf Board and the State of Telangana
supporting the case of the Telangana State Wakf Board. This also
Survey and Land Records, Ranga Reddy District for conduct of joint
survey along with Wakf Board Surveyor to fix the boundaries of this
land.
Reddy District which was 1st respondent in this W.P. did not file any
stating that the said land is Government Land and there was no
between them, the State Government would have opposed the said
Revenue and Wakf Board officials and boundaries were fixed; that
Hafeezpet village.
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191. In view of the above facts and circumstances, and the above
referred conduct of the State of Telangana and it’s officials and the
a Civil Suit before the Wakf Tribunal constituted under Sec.83 of the
Also the actions of the A.P. State Wakf Board, the predecessor
property under Section 36 of the Act, without any enquiry under Sub-
and the petitioners need not avail the remedy under Sec.83 of the
192. We also declare that the Telangana Wakf Board could not have
Reddy District as the said land does not belong to it or to the State
Conclusion :
193. Accordingly,
allowed;
property;
(iv) The Telangana State Wakf Board is directed to delete the entry
Reddy District;
conveyance etc without raising any objection that the said land
(x) the above actions (iv),(vi),(vii),(viii) and (ix) shall be carried out
and
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(xi) The State of Telangana and it’s Officials and the Telangana State
(xii) the State of Telangana and the Telangana State Wakf Board shall
weeks.
____________________________
M.S.RAMACHANDRA RAO, J
____________________
T.VINOD KUMAR, J
Date: 30-03-2021
Note :-
Furnish CC by 31.03.2021.
B/o.
Svv/Vsv/Ndr