Full Text
CIVIL APPEAL NO. 10770 OF 2016
STATE OF ANDHRA PRADESH
(NOW STATE OF TELANGANA) .....APPELLANT(S)
W I T H
CIVIL APPEAL NO. 10738 OF 2016
CIVIL APPEAL NO. 10768 OF 2016
CIVIL APPEAL NO. 10769 OF 2016
CIVIL APPEAL NO. 10773 OF 2016
CIVIL APPEAL NO. 10775 OF 2016
CIVIL APPEAL NOS. 10776-10777 OF 2016
CIVIL APPEAL NO. 10771 OF 2016
CIVIL APPEAL NO. 10772 OF 2016
CIVIL APPEAL NO. 10774 OF 2016
JUDGMENT
2016, 10769 OF 2016, 10773 OF 2016, 10775 OF 2016 AND
10776-10777 OF 2016
1. The present appeals are directed against an order passed by the High Court of Judicature at Andhra Pradesh on 3.4.2012[1] whereby the writ petitions challenging the Errata Notification dated 13.3.2006, published in the Official Gazette of the State of Andhra Pradesh on 6.4.2006 on behalf of Andhra Pradesh Wakf Board[2], were dismissed. The said notification reads thus: “THE ANDHRA PRADESH GAZETTE PUBLISHED BY AUTHORITY HYDERABAD, THURSDAY, APRIL 6, 2006 Part-I Notifications by Government Heads of Departments And other Officers CONTENTS xx xx xx ERRATA NOTIFICATION OF DARGAH NZT HUSSAIN SHAH VALI, MANIKONDA (V), RAJENDARANAGAR (M), R.R. DISTRICT
┌─────────────────────────────────────────────────────────────────────────────┐ │ Serial Name of Name Area Name of │ │ Numbe Taluk or and Mutawalli │ │ r village or situation │ │ Ward of Wakf │ │ Sunni or │ │ Shia │ │ 3057, Hyderaba 1.Dargah 1. 3165 sq. Syed │ │ 3058 & d West, Hazrath Yds. Safiullah │ │ 3059 Taluk, Jussain 2. 1222 Hussaini │ │ Dargah Shah Sq. Yds │ │ Hussain Wali 3. 1069.5 │ │ Shah Wali 2. Sq. Yds. │ │ (V) Khanqa │ │ With (S) (262, │ │ Mosque 261 & │ │ and well. 260/1) │ ├─────────────────────────────────────────────────────────────────────────────┤ │ 3. House │ │ on the │ │ North │ │ side of │ │ Khanqah │ │ Area │ │ 37. A perusal of the documents filed by the Wakf Board before this │ │ Court shows that it was on 30.1.2005 that Syed Safiullah │ │ Hussaini, the Mutawalli, wrote a communication to the Chief │ │ Executive Officer of the Wakf Board to constitute a Managing │ │ Committee to protect the Wakf property and the service Inam │ │ land to an extent of 1654 acres situated in Manikonda Jagir │ │ Village as it had not been notified in the Andhra Pradesh │ │ Gazette. The relevant extract from the letter reads thus: │ │ “I, hereby submit the following few lines for kind │ │ consideration and favourable immediate action. │ │ I, submit that there is a Darga known as ‘Darga Hazrat │ │ Hussain-Shah Vali’ situated at Hussain Shah Vali Village, │ │ Rajendernagar Mandal consisting of Darga, Khankha, │ │ Mosque, House notified in A.P. Gazette No. 6-A, dt. 9 th │ │ February 1989 at Sl. No. 3055, 3057, 3058 & 3059 under │ │ the towalliath of the Petitioner herein. │ │ I am performing the duties of Mutawalli by conducting │ │ Annual Ceremony without any complaint from the public │ │ and devotees. │ │ There is a Muntakhab issued from the Nazime-Atiyat of │ │ A.P. in file No. 2/56 Atiyat in the year 1344 Fasli from │ │ which it is evident that there is service Inam lands to an │ │ extent of 1654 Acres situated in Manikonda Jagir Village, │ │ but it has not been notified in A.P. Gazette. There are │ │ Sulse Sulsan as mentioned in the Muntakhab. I further │ │ submit that I am in old age having above 80 years and │ │ found it difficult to protect the service inam lands now a │ │ days due to interference from various corners and │ │ without getting any source of income from the said │ │ property. As such I am only depend upon the income │ │ source of Darga alone which itself found to be very │ │ meagre for livelihood and maintenance of the │ │ institution.” │ └─────────────────────────────────────────────────────────────────────────────┘
117. The reliance of Mr. Dewan on Chhabil Dass Agarwal is again not tenable for the reason that challenge in the aforesaid appeal was to the quashing of a notice for assessment under Section 148 of the Income Tax Act. This Court held as under:
118. It was found that the Income Tax Act provides complete machinery for assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities. The remedy under the statute must be effective and not a mere formality with no substantial relief. Having said so, this Court held that the Writ Court ought not to have entertain the writ petition filed by the assessee wherein the legality of the notice issued under Section 148 of the Income Tax Act alone was subject matter of challenge.
119. We find that the High Court has examined the merits of the contention raised including the documents filed so as not to accept the contentions of the State. Though the High Court has expressed the same to be prima facie view, but in fact, nothing was left to suggest that it was not a final order as far as the State is concerned with the order of the dismissal of its writ petition. Even otherwise, we find that the questions raised before this Court are the interpretation of the statues, the Farmans issued by Sovereign from time to time and the interpretation of the document to the facts of the present case. It is not a case where any oral evidence would be necessary or is available now. In fact, that was not even the suggestion before this Court. Since the question was in respect of interpretation of the statutes and the documents primarily issued by the Sovereign, the matter needs to be examined on merits as detailed arguments have been addressed by learned counsel for the parties. Thus, we find that the High Court erred in law, in the facts and circumstances of the case, to relegate the parties to the statutory remedy.
2. Whether the Government was entitled to dispute the validity of Errata notification before the Writ Court under Article 226 of the Constitution?
120. Admittedly, the Government is reflected as the owner of the land in question since the year 1912-13. The Government has exercised its rights of ownership as a successor of the Sovereign. Consequent to Abolition Regulation and payment of commutation under the Commutation Regulation, the State Government had transferred land to the Corporation. A public notice was also issued to invite objections, if any, to the allotment of the land but since none were received, the Corporation made further allotment to various corporate entities. The Wakf Board is a statutory authority established under the Act and is a “State” within the meaning of Article 12 of the Constitution. A constitution Bench of this Court in a judgment reported as Rajasthan State Electricity Board, Jaipur v. Mohan Lal & Ors63 held “that the expression “other authorities” in Article 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities”.
121. Similar view that an authority created by a Statute is state within the meaning of Article 12 was considered in a judgment reported as “State of U.P. v. Neeraj Awasthi & Ors.” 64 when it was held that the U.P. Agricultural Produce Market Board constituted by a statute “UP Krishi Utpadan Mandi Adhiniyam, 1964” is a State within the meaning of Article 12 of the Constitution.
122. Since, the Wakf Board is state, it has act to act fairly and reasonably. This Court in a judgment reported as Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay65 held that the action of a statutory authority must be reasonable and taken only upon lawful and relevant grounds of public interest. This Court held as under:- “25. Therefore, Mr Chinai was right in contending that every action/activity of the Bombay Port Trust which constituted
“State” within Article 12 of the Constitution in respect of any right conferred or privilege granted by any statute is subject to Article 14 and must be reasonable and taken only upon lawful and relevant grounds of public interest. Reliance may be placed on the observations of this Court ………. Where there is arbitrariness in State action, Article 14 springs in and judicial review strikes such an action down. Every action of the executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article 14. The observations in paras 101 and 102 of the Escorts case [(1986) 1 SCC 264: 1985 Supp 3 SCR 909] read properly do not detract from the aforesaid principles.”
123. In another judgment reported as Shrilekha Vidyarthi (Kumari) v. State of U.P.66, this Court held that the arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity. This Court held as under:-
124. In another judgment reported as M.J. Sivani and others v. State of Karnataka67, this court held that fairplay and natural justice are part of fair public administration; non-arbitrariness and absence of discrimination are hallmarks for good governance under rule of law. It was held as under:-
132. The Wakf Board is a statutory authority under the 1954 Act as well as under the 1995 Act. Thus, the Official Gazette had to carry any notification at the instance of the Wakf Board. Therefore, the State Government is not bound by the publication of the notification in the Official Gazette at the instance of the Wakf Board only for the reason that it has been published in the Official Gazette. The publication of a notice in an Official Gazette has a presumption of knowledge to the general public as an advertisement published in a newspaper. Therefore, mere reason that the notification was published in the State Government gazette is not binding on the State Government. (4) Whether the notification published at the instance of Wakf Board is in exercise of power conferred under Section 32 read with Section 40 of the 1995 Act?
133. It has been argued that the Board is competent to collect information regarding any property which it has reason to believe to be Wakf property and if any question arises as to whether a particular property is a Wakf property or not, or whether a wakf is a sunni wakf or a shia wakf, it may, after making such inquiry as it may deem fit, decide the question.
134. The argument of Mr. Ahmadi is that the Board under Section 32(2)(n) has the power to investigate and determine the nature and extent of wakf and wakf property and to cause whenever necessary, a survey of such wakf property. It is thus contended that the Wakf Board has a statutory function to investigate and determine the nature and extent of wakf. Such power is not dependent upon the provisions of Section 40 of the 1995 Act as the power to investigate and determine is exhaustive as contained in Section 32(2)(n) of the 1995 Act.
135. Reliance has been placed upon a judgment of Kerala High Court in A.P.A. Rasheed wherein the Division Bench of Kerala High Court examined the question as to whether a Wakf Board acting under Section 32 of the 1995 Act is an adjudicatory body. The High Court held that powers under Section 32 are in the nature of powers of superintendence in administration and empowers the Wakf Board to pass interim as well as final orders. The Court
136. The High Court in the aforementioned case was examining scope of Section 32. It held that such powers are to be exercised primarily to ensure that the wakfs are properly maintained, controlled and administered. Sub-clause (o) shows that the Board has powers to do such acts as may be necessary for the control, maintenance and administration of Wakf.
137. Mr. Ahmadi has further relied upon an order passed by the learned Single Bench of the Calcutta High Court in Amjad Ali Mirza’s case. It may be stated that a sale deed was executed by Secretary of State for India-in-Council in favour of five men managing committee on 31.7.1926. One of the questions examined was the scope of Section 40 of 1995 Act. It was held that the impugned resolution of the Wakf Board under Section 40 of 1995 Act was virtually devoid of reasons. The title in respect of a property was decided by the resolution but the Board did not care to record even a semblance of judicial consideration while taking the resolution. However, the Court examined the sale deed dated 31.07.1926 to hold that the transfer was not in favour of the committee members in their personal capacity or for their individual interest but solely for the worship of the Mohammedan community. The High Court
138. Therefore, the judgment of the High Court was interpreting the document which was subject matter of consideration before the High Court. The inquiry under Section 40 was found to be perfunctory without recording any reasons. Therefore, the said judgment is actually not helpful to the argument of Mr. Ahmadi.
139. The question to be examined is that power to investigate and determine the nature of property is an administrative function as submitted by the Learned Counsel for the Wakf Board and Dargah or is it a quasi-judicial function as an inquiry is required to be conducted before any property is declared to be Wakf property. It was argued by the appellants that since such order of the Wakf Board is final, subject only to an appeal before the Wakf Tribunal, it has to be a reasoned and speaking order as in appeal, the correctness of the reasons recorded by the Board would be required to be examined.
140. The test to determine as to whether an institution discharges quasi-judicial function came up for consideration before this Court in a judgment reported as Indian National Congress. This Court held that if law requires that an authority before arriving at a decision must make an inquiry, such a requirement of law makes the authority a quasi-judicial authority. This Court held as under:- “25. Applying the aforesaid principle, we are of the view that the presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi-judicial authority is sufficient to hold that such a statutory authority is quasi-judicial authority. However, in the absence of a lis before a statutory authority, the authority would be quasi-judicial authority if it is required to act judicially.
27. What distinguishes an administrative act from a quasijudicial act is, in the case of quasi-judicial functions under the relevant law the statutory authority is required to act judicially. In other words, where law requires that an authority before arriving at a decision must make an Inquiry, such a requirement of law makes the authority a quasi-judicial authority.”
141. In a Constitution Bench judgment reported as Province of Bombay v. Khushaldas S. Advani & Ors.71, this Court deduced principles as to when an authority can be said to exercising quasi-judicial functions. It was held that the absence of two parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially. This Court held as under:
144. In respect to the provisions of Section 32 of the 1995 Act, a Division Bench of Kerala High Court in a judgment reported as Ezhome Sunni Valiya Juma Masjid v. Kerala State Wakf Board,73 held that when the Wakf Board is called upon to decide a lis which falls within its jurisdiction and has to be done based on the materials made available before it, after hearing the parties and its decision has far reaching repercussion on the rights of the parties, it is a quasi-judicial function. It was held as under:-
145. Thus, we find that the power of the Board to investigate and determine the nature and extent of Wakf is not purely an administrative function. Such power has to be read along with Section 40 of the Act which enjoins “a Wakf Board to collect information regarding any property which it has reason to believe to be wakf property and to decide the question about the nature of the property after making such inquiry as it may deem fit.” The power to determine under Section 32(2)(n) is the source of power but the manner of exercising that power is contemplated under Section 40 of the 1995 Act. An inquiry is required to be conducted if a Board on the basis of information collected finds that the property in question is a wakf property. An order passed thereon is subject to appeal before the Wakf Tribunal, after an inquiry required is conducted in terms of subsection (1) of Section 40. Therefore, there cannot be any unilateral decision without recording any reason that how and why the property is included as a wakf property. The finding of the Wakf Board is final, subject to the right of appeal under sub-section (2). Thus, any decision of the Board is required to be as a reasoned order which could be tested in appeal before the Wakf Tribunal.
146. Therefore, the Wakf Board has power to determine the nature of the property as wakf under Section 32(2)(n) but after complying with the procedure prescribed as contained in Section 40. Such procedure categorically prescribes an inquiry to be conducted. The conduct of inquiry pre-supposes compliance of the principles of natural justice so as to give opportunity of hearing to the affected parties. The proceedings produced by the Wakf Board do not show any inquiry conducted or any notice issued to either of the affected parties. Primarily, two factors had led the Wakf Board to issue the Errata notification, that is, order of the Nazim Atiyat and the second survey report. Both may be considered as material available with the Wakf Board but in the absence of an inquiry conducted, it cannot be said to be in accordance with the procedure prescribed under Section 40 of the 1995 Act.
147. Since there is no determination of the fact whether the property in question is a wakf property after conducting an inquiry in terms of Section 40(1) of the 1995 Act, the Errata notification cannot be deemed to be issued in terms of Section 32 read with Section 40 of the 1995 Act. Such determination alone could have conferred right on the affected parties to avail the remedy of appeal under Section 40 of the 1995 Act.
148. The reliance on proviso to Section 40(3) of 1995 Act, contemplating notice to the registered trust or society in case the Board has any reason to believe that any property is Wakf and is registered under any of the Acts is absolutely misconceived. These provisions deal with an altogether different situation. A trust or society is already registered but the if Board finds it to be Wakf, the statute contemplates notice to the authority. It does not mean that such trust or society is not required to be heard. The hearing to Trust or Society would also be as per the principles of natural justice. (5) Whether the second survey report and/or the order of the Atiyat Court could be said to be sufficient material with the Wakf Board to publish the impugned Errata notification in exercise of powers vested in Section 5 of the 1995 Act?
149. The argument in support of the Errata notification dated 13.03.2006 is that it is traceable to the powers conferred on the Wakf Board under Section 5 of the 1995 Act. The exercise of the publication of notification is the power conferred on the Wakf Board. Therefore, the fact that second survey report was not submitted to the State Government was inconsequential as it was only a ministerial action. Once the Board had the power to publish notification after perusing the various documents, the same could not be said to be illegal only for the reason that the report was not submitted to the State Government as contemplated by sub-section (1) of Section 5 of the 1995 Act. The argument raised by Mr. Ahmadi that the notification is in terms of Section 5 of 1995 Act is not tenable. It is an admitted case that the second survey report was not submitted to the State Government and such report has not even been forwarded by the Government to the Wakf Board. The Wakf Board may have a right to requisition of any document in terms of power conferred under Section 105 of the 1995 Act, but if a procedure is prescribed for issuance of a notification, it could be issued only in the manner prescribed and not in any other manner. Reference be made to judgment of this Court reported as Babu Verghese v. Bar Council of Kerala74 wherein this Court held as under:-
150. A Constitution Bench in a judgment reported as CIT v. Anjum M.H. Ghaswala75 reiterated that when a statute vests certain power in an authority to be exercised in a particular manner, then the said authority has to exercise the same only in the manner prescribed by the statute itself. It was held as under:-
151. Therefore, we are unable to agree with Mr. Ahmadi that since it was only a ministerial part of submission of the second survey report to the State Government, therefore, the Board had the jurisdiction to publish notification under Section 5.
152. The question now to be examined is whether the Board could issue the Errata notification after a lapse of 17 years from the date of first notification, i.e., 9.2.1989. The exercise leading to the notification started with a letter from Syed Safiullah Hussaini, the Mutawalli on 30.1.2005. He is the mutawalli mentioned in the first notification published in the year 1989. Since the notification was issued with him as Mutawalli, then his inaction for 17 long years speaks volumes of his bona-fide in initiating the process to include the large area of land as wakf.
153. We would need to examine as to what is scope and meaning of the word “errata”. “Errata” is a term of French origin which means a thing that should be corrected. It means a mistake in printing or writing. Reference may be made to a judgment reported as Parvati Devi v. State of U.P.76. It was held as under:-
154. We find that in the facts of the present case, the Errata notification is nothing but a fresh notification altogether. Errata is a correction of a mistake. Hence, only arithmetical and clerical mistakes could be corrected and the scope of the notification could not be enlarged by virtue of an errata notification. As against 5506 sq. yards of land notified as wakf property in the year 1989, large area of 1654 acres and 32 guntas of land could not be included under the guise of an errata notification as it is not a case of clerical or arithmetical mistake but inclusion of large area which could not be done without conducting a proper Inquiry either under Section 32(2) (n) read with Section 40 or on the basis of survey report which was called by the State Government by appointing a Survey Commissioner.
155. It may be noticed at this stage that the second survey report as called by the Wakf Board from the Survey Commissioner has many interpolations visible to the naked eye which creates a doubt on the correctness of the report which could form as a reasonable base to confer jurisdiction on the Wakf Board to include such land as a wakf land.
156. The other part of question is as to whether the order of the Atiyat Court could be said to be relevant to determine the nature of jagir village Manikonda as that of a Wakf land.
157. The Enquiries Act was enacted to consolidate the law regarding Atiyat grants and enquiries as to claim of succession to, or any right, title or interest in Atiyat grants by repealing Dastoor-ul-Amal Inams and Circular No. 10 of 1338 Fasli (1928 AD). In fact, it appears that a Circular No. 19 of 1332 Fasli (19.03.1923) was initially issued by the Sovereign for judicial determination of disputes regarding Atiyat grants. The Circular No. 10 of 1338 Fasli (1928 AD) was repleaded specifically in terms of Section 15 of the Enquiries Act.
158. The Enquiries Act is a special Act to deal with the issues of succession in respect of grants given by the Sovereign. It is the decision of the Civil Court which is to prevail on question of succession, legitimacy etc. The jurisdiction of the Atiyat Courts is limited to the issues which fall within its jurisdiction. The dispute regarding claim of the commutation falls within the jurisdiction of the Enquiries Act. The Atiyat grants also include the amount of compensation payable under the Inams Abolition Act. Section 2 provides that all Atiyat grants shall, subject to provision of Abolition Regulation and the Abolition of Inams Act, continue to be held by the holders thereof subject to the conditions as laid down in the documents issued by competent authorities as a result of inam or succession inquiries held under the Dastoor-ul-Amal Inams or other Government orders on the subject and issued by way of continuance or confirmation of Atiyat grants. Section 3 of the Enquiries Act is subject to the provisions of Abolition Regulation as well as Inams Abolition Act as it contemplates that all Atiyat grants would continue to be held by the holders as laid down in the documents issued by competent authorities as a result of inam or succession inquiries. Under Section 3-A, the Atiyat Courts shall make inquiries as to any right, title or interest notwithstanding the enactment of Abolition Regulation. Therefore, the scheme of the Act is to conduct inquiry in respect of entitlement to receive Atiyat grant and to decide the right of succession amongst the person entitled to receive the grants. In fact, the Enquiries Act cease to apply when the commutation sum has ceased to be payable on account of Abolition of Jagirs under Section 2(1)(b) (i).
159. Atiyat grants have been defined to mean in the case of jagirs abolished under the Abolition Regulation, the commutation sums payable under the Commutation Regulation. The Atiyat grant exclude inams under the Inams Abolition Act but contemplates the payment of compensation within the ambit of Atiyat grants. The inquiry is to be held by Atiyat Courts in accordance with the provisions of the Act including inquiries into claims to succession arising in respect of such grants. An appeal lies to the Board of Revenue against the order of the Nazim Atiyat in terms of Section 11 of the Act. The decision of the Civil Court is to prevail on questions of succession, legitimacy etc. in terms of Section 12 of the Act. Section 13 gives finality to the decision of the Atiyat Court.
160. However, sub-section (2) provides that the orders passed in cases relating to Atiyat grants on or after 18.9.1948 and before the commencement of the Act by the Military Governor, the Chief Civil Administrator or the Chief Minister of Hyderabad or the Revenue Minister by virtue of powers given or purported to be given to him by the Chief Minister shall be deemed to be the final orders validly passed by a competent authority under the law in force at the time when the order was passed and shall not be questioned before any Court of law.
161. In Raja Ram Chandra Reddy, the order of the Chief Minister was treated to be an order of the Sovereign. It was held that no limitation could have been imported into the effect of Farman of the Nazim. The Chief Minister’s order would stand validated by Section 13(2) of the Enquiries Act irrespective of the competence of the preceding authorities which dealt with the case. The order passed by the Chief Minister passed on 29.5.1956 would be a binding order in terms of Section 13(2) of the Enquiries Act. This Court held as under:-
162. It is to be noted that the Enquiries Act is applicable in respect of Atiyat grants alone. Atiyat grants after the commencement of Jagir Abolition Regulation mean only the commutation sum payable under the Commutation Regulation or the compensation payable under the Inams Abolition Act or cash grants etc. The Nazim Atiyat passed its order on 31.5.1957, when its jurisdiction was only in respect of commutation payable after the commencement of the Commutation Regulation. Factually, the order of the Nazim Atiyat is regarding distribution of shares in the Biradari portion of Mashrut-ul- Khidmat whereas rest of the property was to be considered Madad Maash. Since the jurisdiction of the Nazim Atiyat was restricted only to the commutation amount payable, the finding regarding Mashrut-ul-Khidmat land or a Madad Maash land is beyond the scope of the authority of a Nazim Atiyat on the date when the order was passed.
163. A perusal of the order of the Nazim Atiyat shows that the Nazim was conscious of the factum of the Jagir Abolition Regulation, Commutation Regulation as well as Abolition of Inams Act. Therefore, the order was passed subject to the said three statutes. The statutes have to be read along with the order of the Chief Minister making it categorical that jagir Manikonda stood vested with the State. Therefore, the order of Nazim Atiyat is operative only qua the commutation amount payable to the dependents of Sajjada and the amount payable to the Muslim Wakf Board, now represented by the Wakf Board. In terms of Section 10(2)(i) of the commutation Regulation, 90% of the gross basic sum referred to in Section 4 of the Commutation Regulation is payable to the religious and charitable institutions. Therefore, by virtue of the Abolition and the Commutation Regulation, the claim of the Wakf Board is restricted only to 90% of the amount of the gross basic sum referred to in Section 4 of the Commutation Regulation. Therefore, after the Atiyat grants stood abolished in terms of Abolition Regulation, the Atiyat Courts would have jurisdiction to decide issues relating to succession of the commutation amount payable to the heirs. (7) Whether the land in question is Mashrut-ul-Khidmat land and thus would continue to be wakf land even though the jagir of the village was abolished or that the land vested in the State under Abolition Regulation or the Commutation Regulation or under the Inams Abolition Act?
164. A perusal of the order of Nazim Atiyat shows that the Sovereign has issued a Royal Order on 1st Ramzan, 1333 Hijri i.e. 13.07.1915 directing Sajjada to pay debt amount in lumpsum to the mortgagee Hussain Bin Muqaddam Jung. The said Farman has been produced by the learned counsel for the Dargah as reproduced in Para 44 of the order. It has also come on record that the Sovereign in 1249 Fasli granted conditional jagir on Oodh-O-Gul (flowers and perfume) expenditure of the Dargah. It was held that since the property was mortgaged with the sanction of the minister, it conforms to the conditional nature of the Maash as no permission would have been necessary if the property was self-purchased. Later, referring to the order of the Chief Minister dated 29.5.1956, it was held that Manikonda and Guntapalli villages are conditional on service to the Dargah. However, under Issue No.3, it was held that Syed Safiullah Hussaini as Sajjada shall be entitled to 2/3rd share according to Sula-e-Sulsan rule in the property for rendering service but such share was made subject to the Abolition Regulation, Commutation Regulation and Inams Abolition Act. The 1/3rd share of the total property was also allotted by the Nazim Atiyat. It was the said order of Nazim Atiyat which was given effect to by issuing a Muntakhab No. 98.
165. The proceedings before the Nazim Atiyat started somewhere in the year 1923. The rights of the parties were being examined on the date when the plaint was filed before the Atiyat Court. Due to subsequent action of the Sovereign, a decision to abolish jagirs and consequently for payment of the commutation was taken. The Enquiries Act was amended in 1956 which makes the provisions of the Enquiries Act inapplicable when the commutation sum has ceased to be payable under Section 16 and the Atiyat grants mean the commutation sums payable under the Commutation Regulation after the Abolition Regulation and that even the commutation sum shall cease to apply to an Atiyat grants. Thus, the Jurisdiction of the Atiyat Court would be limited to the disputes relating to Atiyat grants as defined in the Enquiries Act. (8) Whether the land in question is Mashrut-ul-Khidmat land and thus would continue to be wakf land even though, the Jagir of the village was abolished and that the Land vested in the State under Abolition Regulation or the Commutation Regulation or under the Inams Abolition Act?
166. In a celebrated book titled as Mohammedan Law by Syed Ameer Ali (compiled from the Authorities in the original Arabic), the relevant explanation in respect of wakfs of jagirs and grants made by Kings and Ameers reads thus: “Jagirs are of two kinds, one where the land has been granted in fee, that is, first the sovereign has purchased it from the Bait-ul-mal and presented it to the grantee, or it is a portion of the royal domains; 2nd, where the usufruct is only granted and the jagir is vested in the Crown. In the former case, the grantee may make a wakf, in the latter case not.”
167. The Privy Council in a judgment reported as Vidya Varuthi Thirtha v. Balusami Ayyar & Ors.77 drew a fine distinction between the Wakf recognised by Muslim law, religious endowments recognised by Hindu law and the Public Charitable Trust as contemplated by the English law. The Court held as under:
objects and any other objects of public utility established for the benefit of the Muslim community. …”
169. The question as to whether the grant of Mashrut-ul-Khidmat would continue to be wakf land needs to be examined. The argument of Mr. Giri is that Manikonda being a jagir village, the grant was for life time of the grantee and that such grant was neither heritable nor alienable. In Ahmad-Un- Nissa Begum, a full bench of the then Hyderabad High Court dealt with succession to the jagir estate of one Nawab Kamal Yar Jung. It was, inter alia, held that Ruler of the State was the absolute owner of all the lands. He granted usufructuary rights to them including the jagirdars. It was held as under: “7. …….The cumulative effect of the authorities referred to above is that the jagir tenures in this State consisted of usufructuary rights in lands which were terminable on the death of each grantee, were inalienable during his life, the heirs of the deceased holder got the estate as fresh grantees and the right to confer the estate was vested in the Ruler and exercisable in his absolute discretion. Nevertheless, the Jagirdars had during their lives valuable lights of managing their estates, enjoying the usufructs and other important privileges, which conferred considerable monetary benefits on them.
12. The effects of these Regulations are that all existing Jagir tenures in the State were merged in the State lands and the State alone became the ultimate landlord; and the rights to receive allowances became statutory, heritable and justiciable. Had it not been for the proviso to sub-S. (2) of S. 21, it could have been argued with some justification that the rights to receive interim allowances and compensation required no special sanctions by acceptance of the recommendations of the tribunals in pending succession cases; for under sub-s. (3) of S. 9, the heirs of the deceased jagirdars are declared to be entitled to their shares in the income after the deduction of expenses. The proviso, however, directs completion of such proceedings according to the existing law, which term has been defined by clause (b) of S. 2 of Regulation no LXIX[69] of 1358 Fasli to mean the law in force at the commencement of this Regulation including the Atiyat Law, customs or usage having the force of law. Thus under the enactment still some sanction is necessary to complete the heirs title to the income and compensation. I have said that the right of regranting jagir according to the Atiyat law was vested in the Ruler as his prerogative on the basis of his being the Seignior of the manor and could be exercised only by him even after the Police Action. But after the passing of the Regulation and the vesting of the Seigniory in the Government the power of regranting becomes statutory and capable of being exercised on behalf of the new owner, whoever it may be, by the person entrusted with the executive powers. It was argued that event before the Police Action estates of jagirdars escheated to the ‘Diwani’ and never to the Ruler. I would not attach any importance to such precedents, for in Atiyat matters the Rulers of this State have not held themselves bound by precedents. The position becomes fundamentally different when there are specific statutory provisions and there are rules relating to such escheats in the Regulation. That was the legal position when Shri M.K. Vellodi was appointed as the Chief Minister.”
170. The said judgment was affirmed by this Court in a judgment reported as Raja Rameshwar Rao and Another v. Raja Govind Rao79 holding that the jagirs granted in Hyderabad State were not hereditary, though it may be that a son was allowed to succeed to the father in the normal course. The State, however, always had the right to resume the grant at its pleasure. It was held that: “11. …….But even this letter shows that the State has got the right to resume the grant at pleasure and if that is so it cannot be said that the jagirs granted in Hyderabad were permanent and hereditary, though it may be that a son was allowed to succeed to the father in the normal course. The State however had always the right to resume the grant at pleasure. The nature of jagirs in Hyderabad came to be considered by a bench of five Judges of the former High Court of Hyderabad in Ahmad-un-Nissa Begum v. State [AIR 1952 Hyd 163, 167]. Ansari, J., after referring to two cases of the Privy Council of the former State of Hyderabad as it was before 1947 and certain firmans of the Ruler observed as follows as to the nature of jagirs in Hyderabad: “The cumulative effect of the authorities referred to above is that the jagir tenures in this State consisted of usufructuary rights in lands which were terminable on the death of each grantee, were inalienable during his life, the heirs of the deceased holder got the estate as fresh grantees and the right to confer the estate was vested in the Ruler and exercisable in his absolute discretion. Nevertheless, the Jagirdars had during their lives valuable rights of managing their estates, enjoying the usufructs and other important privileges which conferred considerable monetary benefits on them.”
171. Similar view was taken by the High Court in a judgment reported as Sarwarlal and Others v. State of Hyderabad80 which was affirmed by this Court in Sarwanlal & Anr. v. State of Hyderabad (Now Andhra Pradesh) & Ors.81. The issue has been examined in another judgment reported as M/s Trinity Infraventures Limited v. The State of Telangana, represented by its Principal Secretary82 wherein it was “20.
(xii) These Paigah grantees, were not absolute owners of the estates. In fact, the Jagirsin Hyderabad State were neither in the nature of Zamindaries of Madras State nor of Taluqaris of U.P. While proprietary rights vested in the Zamindars of Madras and Taluqdars of Qudh, the Jagirdars in Hyderabad were entitled only to the usufructs of revenue from the estate for life. The grant, in law, on the death of Jagirdar. The Paigah estates with which this case was concerned, was no exception to this. In fact, since they were burdened with the obligation to maintain Paigah troops, they were liable to be resumed by the Nizam if he so willed. The Nizam could as well commute the military burden into an equivalent money payment and requires such payment on pain of resuming the Paigah Jagir. He was, at any time entitled to state that he does not require troops but require money in their stead.”
172. The reliance of Mr. Ahmadi upon an order passed by the Andhra Pradesh High Court in R. Doraswamy Reddy is not helpful to the arguments raised. The High Court referred to the judgment of this Court in Nawab Zain Yar Jung. In the aforesaid case, the appellant in second appeal before the High Court was asserting his rights as purchaser of the land after the issue of notification declaring such land to be wakf property. The argument raised was that the property does not vest in Almighty but it vests in the person who is rendering service. It was held that for non-performance of service, the land can be resumed but does not mean that the original grantor continues to be the owner of the property. Once Wakf is created, it continues to be wakf. In the present case, the grantor of Mashrut-ul-Khidmat i.e. service to Dargah is not an individual but the Sovereign in whom the entire interest in the property vested. Therefore, Sovereign who is ultimate repository of all functions of the State, can undo the grant of service. The jagir stood abolished with the Farman and land consequently vested with State. Such vesting would include the vesting of right of Mashrut-ul-Khidmat, which is ancillary right as right to provide service to Dargah. The jagir or jagir rights were not granted to Dargah.
173. It is the said judgment which was quoted with approval by this Court in a judgment reported in Sayyed Ali, in the said case, a civil suit was filed by the Wakf Board disputing long-term lease executed by Mutawalli. Learned counsel for the appellant referred to a compromise (Exhibit A-20) of the dispute between the Government and the Mokhasadar before the Madras High Court. The compromise contemplated to spend a portion of income for performing Moharram, monthly festivals and general upkeep of Dargah. It was held that the compromise decree constituted inam as a service inam and such grant answers to description of wakf even if the Mokhasadars were allowed to enjoy the property. The said judgment has no applicability to the facts in the present appeals as the Mashrut-ul-Khidmat, service grant to Dargah was granted by the Sovereign and therefore Sovereign had a right to take away that right. Such right was exercised by enacting Abolition and Commutation Regulations including abolishing the jagirs granted to temples, mosques and other institutions. Therefore, the abolition of grant for the service of the Dargah is covered by Section 16 of the Abolition
174. The argument of Mr. Ahmadi is that as per the Nazim Atiyat order, land of jagir village Manikonda was found to be Mashrut-ul-Khidmat land i.e. income from the land was to be used for the service of Dargah that is for pious and religious purposes. The said purpose would be considered as wakf under the Muslim law even before 1961 when the same was specifically included in the 1954 Act. Thus, a land which is dedicated for pious and religious purposes would continue to be wakf in view of the principle that once a wakf is always a wakf. It was also argued that the Endowment Regulations framed in the year 1940 excluded Mashrut-ul-Khidmat land from the operation of the statue as per the definition of endowment in Section 2 of the said Act. The reliance is placed upon Rules 445 and 447 framed in terms of Section 16 of the Endowment Regulations contemplating that the estates subject to condition of service will be regarded as endowed and the proceedings will be adopted for entering the said estates in the Book of Endowment. It was also argued that the Abolition Regulation abolished different forms of jagirs but not the jagir which was a Mashrut-ul-Khidmat land, therefore, the argument is that the Abolition Regulation would not be applicable in respect of the land dedicated to Wakf.
175. The land was mortgaged by Sajjada Safeerullah Hussaini with the permission of the sovereign in favour of Hasan Bin Muqaddam Jung on 1st Rajab 1296 Hijri (June 20, 1879). It shows that user of land for service of Dargah was not as sacrosanct as is sought to be projected. In fact, after the death of Safeerullah Hussaini in 1303 H (somewhere in the year 1886-87), his son Akbar Hussaini submitted an application for the restoration of Maash. It was on the request of Akbar Hussaini that the Sovereign issued the Farman on 1st Ramzan 1333 (13.7.1915) for the release of the mortgaged land, subject to the Sajjada, repaying the amount he owes to the factory of Hasan Bin Mohsin, who appears to be successor of the mortgagee who died in the year 1290 Fasli (1880).
176. It is the Sovereign who had granted permission to redeem land to Akbar Hussaini. The Sovereign was the owner of all lands within his State. The jagirdars were permitted to enjoy the usufruct thereof. Such jagirdar had no right to alienate the property and after his death, the Sovereign may regrant the same to his son but it is the Sovereign who has had the title over the land at all material times.
177. The Shahi Farman dated 1st Ramjan 1333 Hijri (13.7.1915) shows two facts- (1) that the jagir land was mortgaged with Hasan Bin Mohsin, and (2) after his death, the land was under the supervision of the Government. Still further, at the time of death of the Sajjada Safeerulla Hussaini, his heirs were minors and the Court of Wards was appointed to manage the estate on behalf of the minors. The Royal Order is to the effect that Sajjada of Dargah shall regularly pay the amount to the other shareholders who have the right to receive maintenance allowance required for their upkeep. If the inam inquiries or inheritance inquiries are required, the same shall be done as per the rules and regulations. It was thereafter that the matter was taken up by Nazim Atiyat on the basis of a plaint filed by Akbar Hussaini, son of late Safeerulla Hussaini in terms of the royal order.
178. Section 16 of the Abolition Regulation specifically abolishes the jagir granted to a temple or mosque or any other institution established for a religious or public purpose. In the present case, jagir was not granted to a mosque or any institution established for religious or public purpose but the Sajjada was only permitted to use the usufruct of the land of the village for the service of the Dargah. If the jagir itself stood abolished in terms of Section 16 of the Abolition Regulation, the usufruct from the land as Mashrut-ul-Khidmat was not greater than the jagir granted to a religious or public purpose. Therefore, the land granted as Mashrut-ul-Khidmat to Sajjada for rendering service to Dargah would be a minor right as against the jagir granted to a mosque or any other religious institution. Therefore, the land which was given for Mashrut-ul- Khidmat could very well be abolished by the Sovereign while enacting the Abolition Regulation.
179. The column 7 of Muntakhab No. 98 describes the property of village Manikonda as conditional service grant to the Dargah. It does not override the statutory provisions. The Muntakhab is a consequential order or decree to the order passed by Nazim Atiyat. Such jurisdiction conferred on the Atiyat Court is confined to the entitlement of the persons to the right or interest in Atiyat grants. Therefore, the Muntakhab (decree) would not enlarge the scope of the order as neither the jurisdiction of the Atiyat Courts under the Enquiries Act nor the Abolition Regulation or the Commutation Regulation, permitted the service to Dargah.
180. Now adverting to the order of the Chief Minister dated 29.05.1956 which is the other document relied upon by Mr. Ahmadi apart from the reports of the first Taluqdar and second Taluqdar as mentioned in the order of Nazim Atiyat, the reports of the first Taluqdar and the second Taluqdar are only aid to facilitate decision by the Nazim Atiyat but they are not the judicial orders which could be said to be binding. It is the order of the Nazim Atiyat passed under the Enquiries Act which is relevant and not the reports received from the Revenue Authorities to arrive at the decision dated 31.05.1957. The order of Nazim Atiyat in review as well as the dismissal of appeal by Board of Revenue without any reasons would be relevant only to the extent that such proceedings were initiated but remain unsuccessful. Even the order of the High Court in the writ petition against the order passed by the Board of Revenue is only an order of affirmation of the order passed by Nazim Atiyat, though certain observations were made which were not even part of the order of Nazim Atiyat. Similarly, the Muntakhab No. 98 issued by Nazim Atiyat is only a consequential decree subsequent to the order passed by Nazim Atiyat on 31.05.1957. In fact, the survey report at serial number 262, in the remark’s column, mentioned that “Dargah is looked after by Mutawalli and in the past, the Jagirs of Manikonda, Dargah Hussain Shah Wali and Guntapalli were given for the functioning of Dargah and annual Urs. The particulars of the compensation received used by the Mutawalli are not known”.
181. The argument that Manikonda village was in the list of exempted jagirs and that in the final order, Manikonda and Guntapalli villages were not made subject to Abolition of Inams Act does not appear to be factually correct and in any case is of no consequence. Issue No.3 in the order of Nazim Atiyat was whether Maqdoom Hussaini has any preferential right over the claim of Akbar Hussaini. Maqdoom Hussaini was claiming right as self-purchased property whereas Akbar Hussaini was claiming as the successor of Sajjada. It was held that it was not the self-acquired property of Maqdoom Hussaini and thus the Nazim Atiyat had fixed the share of legal heirs. 1/3 family share of Mashrut-ul-Khidmat was in respect of jagir village of Manikonda and Guntapalli, which was to be worked out separately whereas the rest of the property in other villages was to be considered as Madad Mash and that the parties were entitled to their legal shares according to Siham-e-Sharai. Therefore, the only distinction between Manikonda and Guntapalli villages is that they were found to be jagir villages whereas the other villages were found to be Madad Mash. But all the properties were subject to Abolition of Jagirs, Commutation of Regulation and Abolition of Inams Act.
182. Alternatively, even if it is assumed that there is no mention of Abolition of Jagir Regulation or Commutation Regulation in the order in respect of Manikonda Village, it would be wholly inconsequential as a statute would have preference over an order passed in a proceeding initiated prior to the commencement of the statute framed under the authority of the Sovereign. Therefore, on the date of the order passed, the Nazim Atiyat Court had no jurisdiction in respect of jagir villages or in respect of payment of inam but had only the jurisdiction to determine the share of the heirs. Therefore, Muntakhab, the decree is only to give effect of determining the share of all the legal heirs. Hence, the order of Nazim Atiyat could not have overriding effect over the Abolition Regulation and Commutation Regulation.
183. The order of the Chief Minister is to the effect that the Manikonda Village has been handed over to the Government due to abolition of jagir. The order further records that the commutation payable on abolition of jagir is being sent to the shares of the dependents of the family of Sajjada and rest to the Muslim Wakf Board towards service expenses of Dargah. Therefore, the land which was described as a Mashrut-ul- Khidmat stood vested with the State and the commutation amount was paid to the dependents of Sajjada and to the Muslim Wakf Board. The right, title and interest in the jagir land of Manikonda vested with the State with the orders of the Chief Minister. The commutation amount after the abolition of Jagir was also ordered to be paid to the dependents of the estate and the Muslim Wakf Board.
184. Though the said order of the Chief Minister was mentioned by Nazim Atiyat, it was still held that the land is Mashrut-ul- Khidmat to the Dargah. In terms of the order of the Chief Minister, jagir Manikonda vested with the State. Such order of Nazim Atiyat has to be read subject to the order of the Chief Minister who was acting under the Farman issued by the Sovereign. Such order being that of Sovereign, the order of the Nazim Court, again a creation of the Sovereign will not be operative to the extent of the order passed by the Sovereign.
185. The order of the Chief Minister shows two things- that the land of Manikonda village had been handed over to the Government due to abolition of jagirs and the commutation amount is being sent to the dependents on the estate as well as to the Muslim Wakf Board. Therefore, the order passed by the Nazim Atiyat is, in fact, not in accordance with order passed by the Chief Minister, who was discharging the functions of the Sovereign.
186. Therefore, the Sovereign having enacted the Abolition Regulation and consequent Commutation Regulation was exercising its right as the owner of the land which at all material times vested with the Sovereign, subject to usufructuary right of the jagirdar. It was the Sovereign who had granted right to do service to Dargah. The Sovereign who had the right to give jagir village for service had a right to take away that right as well. Therefore, the abolition of jagir by the Abolition Regulation was absolute.
187. Therefore, in terms of the Jagir Abolition Regulation, the rights in the jagir and of Sajjada as holder of right to take care of Dargah stood abolished. Such is the order of Nazim Atiyat as the order was made subject to the Abolition and Commutation Regulations and also abolition of Inam under the Inams Abolition Act.
188. In Mohd. Habbibuddin Khan, the appellant was a hissedar in the Paigah estate. Such estate was abolished under the Abolition Regulation followed by the Commutation Regulation. The argument raised was that Atiyat Courts had no jurisdiction to hold an investigation into his claim regarding commutation. This Court held as under:
189. In K.S.B. Ali, the Division Bench of the High Court was considering a challenge to the tenders called by the Hyderabad Urban Development Authority for sale of land situated in Kokapet village. The dispute was after the death of Nawab Nusrat Jung Bahadur who was the holder of the land admeasuring 1635 acres and 34 guntas. The High Court held under the Enquiries Act that the power and jurisdiction of the Atiyat Court is confined to make an inquiry into the right, title or interest in the Atiyat grants and hold Inquiry into the claim to succession arising in respect of such grants. It was also held that all jagir lands vested in Diwani and that the erstwhile jagirdars and hissedars were only entitled to cash grants in whatever name they are called. There was no question of granting propriety rights under the Enquiries Act. It was held as under: “29. From a reading of the above referred/reproduced provisions of the 1952 Act, and as amended, it could be seen that the power and jurisdiction of Atiyat Court is confined to making enquiries into right, title or interest in Atiyat grants and also holding Inquiry into the claims to succession arising in respect of such grants. Under Section 3 (pre-amended provision) all Atiyat grants held before the commencement of the Act were continued subject to the provisions of the Hyderabad Enfranchised Inams Act, 1952. Section 4 made the grants in the Jagir areas or granted by the erstwhile Jagirdars subject to enquiries and confirmation in accordance with the 1952 Act.
30. As already noted above, the definition of Atiyat grants was amended by the 1956 Amendment Act and Section 2(1)(b)(i) specifically restricted the Atiyat grants in case of Jagir lands to the commutation sums payable under the 1359 Fasli Regulation.
33. Since all Jagir lands were vested in the ‘Diwani’ and the erstwhile holders (Jagirdars and Hissedars) were only entitled to cash grants in whatever name they are called there was no question of granting property rights to them under the 1952 Act. If the definition of Atiyat grant is construed to comprehend even grant of property rights over Jagir lands, it frustrates the entire scheme and renders the provisions of the 1358 and 1359 Fasli Regulations nugatory.”
190. Thus, the writ appeal was dismissed by the Division Bench. A special leave petition was filed by the appellant before this Court. Such special leave petition and the writ petition were withdrawn on 13.12.2007 with liberty to avail alternative remedy. The alternative remedy availed was of again filing a writ petition. The Special Leave Petition was dismissed on 4.10.2017 against the order passed by the High Court in the second round of litigation.
191. The judgment of this Court reported as Nawab Zain Yar Jung was a case arising out of a writ petition filed by the trustees appointed by the Sovereign, directing the trustees to register the trust under the Endowment Regulations and to render accounts of the same. When the matter was pending before this Court, Muslim Wakf Board constituted under Section 9 of the 1954 Act decided that the trust was a wakf within the meaning of Wakf Act and steps should be taken for registration of the trust under Section 28 of the said Act. In these circumstances, the question considered was whether registration of a trust under Section 28 of the Wakf Act was valid or not. This Court held as under: “18. It is true that a large number of provisions contained in the document are consistent with the view that the document creates a wakf as much as they are consistent with the view that it creates a public charitable trust as distinguished from wakf. It is, however, patent that there are some clause which are inconsistent with the first view, whereas with the latter view all the clauses are consistent. In other words, if the construction for which the Board contends is accepted, some clauses would be defeated, whereas if the construction for which the respondents contend is upheld, all the clauses in the document become effective. In our opinion, it is an elementary rule of construction that if two constructions are reasonably possible, the one which gives effect to all the clauses of the document must be preferred to that which defeats some of the clauses. It is not in dispute that if the document is held to be a wakf, the directions in the document that charitable purposes should be selected without distinction of religion, caste or creed, would obviously be defeated and that undoubtedly supports the conclusion that the document evidences a public charitable trust and not a wakf.
19. Besides, the clause on which the argument of dedication is based cannot be divorced from the provision contained in the said clause which provides charitable purposes without distinction of religion, caste or creed and so, intention of the settlor was to help not only charities which would fall within the definition of a wakf but also charities which would be outside the definition and so, the whole argument of dedication breaks down because the idea dedication is not confined to purposes which are recognised as charitable by definition of the Act but extends far beyond its narrow limits. In this connection it may be relevant to recall that it would be competent to the Trustees to a substantial part of the income, and may be even the whole of the income, purpose which may be outside the limits of wakf by virtue of their powers under clause 3(c) of the document, and that plainly suggests that the vision of settlor was not confined to the narrow limits prescribed by the conditions as to a valid wakf.”
192. This Court held that several features of the trust supported the conclusion that the trust is not a wakf and does not fall within the provisions of the 1954 Act. This Court held that on the basis of fair and reasonable construction, the document must be held to have created a trust for public charitable purposes, some of which are outside the limits of the wakf.
193. Mr. Ahmadi has relied upon an order passed by the Chancery Division in the case of Hughes. The Chancery Division was considering Section 70 of the Local Government Act, 1894. Hughes was a trustee. The Charity Commissioner found desirable that the land should be revalued by a competent valuer vide its letter dated 08.03.1897. The order was of payment of some amount by the Hughes. The said order has no application whatsoever to the facts of the present case.
194. In Hathija Ammal, the Wakf Board instituted a suit before the Civil Court for declaration that the property is a wakf property though it was not published as the wakf property under Section 5(2) of the 1954 Act. It was held that Wakf Board should have followed the procedure as required under Sections 4, 5 and 6 or Section 27 of the Act.
195. In Sri Rama Chandra Murthy, a suit was filed by the respondent before the Wakf Tribunal for cancellation of a sale deed. The appellant asserted that the property is not a wakf property as it was not notified in the Official Gazette. An application was filed for rejection of the plaint. It was held that the Wakf Board has not exercised its jurisdiction under Section 27 of the 1954 Act or Section 40 of the 1995 Act and therefore, the averment made in the plaint does not disclose the cause of action for filing the suit. It was held as under:
196. The land dedicated for pious and religious purpose is not immune from its vesting with the State. In Khajamian Wakf Estates v. State of Madras,83 the validity of the Madras Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963 (Madras Act 26 of 1963); the Madras Lease-holds (Abolition and Conversion into Ryotwari) Act, 1963 (Madras Act 27 of 1963) and the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (Madras Act 30 of 1963) was subject matter of challenge on the ground that the material provisions in those Acts are violative of Articles 14, 19(1)(f) and 31 of the Constitution. The impugned Acts were said to be providing for the acquisition by the State of the “estate” as contemplated by Article 31-A. These legislations were undertaken as a part of agrarian reform. In regard to the Inams belonging to the religious and charitable institutions, the impugned Acts did not provide for payment of compensation in a lump sum but on the other hand provision is made to pay them a portion of the compensation every year. The Constitution Bench held as under: -
197. In view of the above, we pass the following order: i) The Civil Appeals are allowed. The orders passed by the High Court are set aside. ii) The Errata notification dated 13.3.2006 is quashed. The Land admeasuring 1654 Acres and 32 guntas vest with the state and/or Corporation free from any encumbrance. iii) In terms of Section 10(2)(i) of the Commutation Regulation, 90% of the gross basic sum referred to in Section 4 of the Commutation Regulation is payable to the Dargah. The arrears shall be calculated and paid to the Dargah within 6 months. iv) No order as to costs.
CIVIL APPEAL NOS. 10771 OF 2016, 10772 OF 2016 AND 10774 OF 2016
198. These appeals are on behalf of alleged tenants or pattadars under the jagirdar. It has been asserted that they started paying rent to the State after abolition of jagirs and claim possession on some part of the land which is now part of the impugned Errata notification. The arguments raised by the appellants have been incorporated in the main judgment. For the reasons recorded above, the appellants are at liberty to seek remedy for the redressal of their grievances before an appropriate forum in accordance with law. These appeals are accordingly disposed of .............................................. J. (HEMANT GUPTA) ............................................. J. (V. RAMASUBRAMANIAN) NEW DELHI; FEBRUARY 07, 2022.