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2009 DIGILAW 123 (AP)

Sirajuddin Daruwala v. State of Andhra Pradesh

2009-02-26

C.V.NAGARJUNA REDDY, T.MEENA KUMARI

body2009
JUDGMENT :- C.V. NAGARJUNA REDDY, J :- This batch of writ appeals involving common issues arise from order dated 24.4.2002 in WP No.10468 of 1999 and batch. WP No.12296 of 2001 is connected with the subject-matter of the batch of these writ appeals. Hence, they are heard and being disposed of by this common judgment. 2. The petitioners in WP Nos.21674 and 10468 of 1999 filed WA Nos.1410 and 1408 of 2002 respectively against the common order passed in the said writ petitions. The State of Andhra Pradesh and the District Collector, Visakhapatnam, two of the respondents in WP Nos.21674 and 10468 of 1999, filed WA Nos.2068 and 1454 of 2002 questioning the common order passed in the said two writ petitions respectively. Certain third parties filed W A No.2101 of 2002 against the common order passed in WP No.10468 of 1999 with the leave of this Court feeling aggrieved by the finding of the learned Single Judge that respondent Nos.1 to 126 are deemed to be in possession of Acs.1385.00 of land in Sy.Nos.212 and 216 of Devada Village. WP N0.12296 of 2001 is filed by a partnership firm by name Shree Krishna Salt Works for a writ of mandamus to direct the respondents therein to pay the petitioner an amount of Rs.2.25 lakhs per acre in terms of G.O. Ms: No.239 dated 22.3.1999 and in accordance with the orders passed by this Court in WP No.5495 of 1992 in respect of the land handed over by it in Sy.No.491 of Devada Village, Pedagantyada Mandal, Visakhapatnam District. 3. The facts in brief, necessary for the disposal of the batch of these cases, are stated hereunder: Devada Village of Pedagantyada Mandai, Visakhapatnam District was an Inam village comprising total extent of Acs.5330.87 cents. Out of the said extent, land admeasuring Acs.2215.85 cents, situated in old Sy.Nos.212 to 216 (revised Sy.Nos.491 to 539), is the subject-matter of this batch of cases. The said land is classified as assessed waste and poramboke in the revenue records. According to the entries in the Inam Fair Register (IFR), an extent of Acs.2848.00 was shown as Service Inam in the name of three individuals, subject to the performance of service in Darga. 4. It appears, in the year 1902 the Government cancelled the title deed standing in the name of Mokhasadars (personal grantees) on the ground that they violated the conditions of grant. 4. It appears, in the year 1902 the Government cancelled the title deed standing in the name of Mokhasadars (personal grantees) on the ground that they violated the conditions of grant. On an appeal filed by the Mokhasadars, a compromise decree was passed by the High Court of Madras in the year 1910. For the purpose of disposal of these cases, it is not necessary to refer to the terms of the compromise decree. The property was the subject-matter of several successive lease deeds executed either by the Mokhasadars or the lessees from them. The Wakf Board filed OS No.148 of 1967 for cancellation of the slid leases. The Settlement Officer, Visakhapatnm, after holding enquiry under Section 9(1) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short, 'the 1948 Act') passed order dated 15.6.1950 holding that Devada was not an inam estate and hence the provisions of the 1948 Act are not applicable to the lands situated in the said village. The said order was confirmed by the Estates Abolition Tribunal by its order dated 25.5.1952. The Andhra Pradesh State Wakf Board issued notification dated 30.11.1961 notifying certain properties as wakf properties. As the lands in question are not included therein, it issued an errata on 16.9.1965 by including these lands in the notification, which was published in the Gazette. 5. On 17.1.1967, the Tahsildar (Inams), Visakhapatnam held a detailed enquiry under the provisions of the Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 (for short, 'the 1956 Act') and held that the lands in question were inam lands. The said decision was questioned by the Wakf Board in appeal filed before the Revenue Court, which dismissed the same by its order dated 21.8.1967. These two orders were questioned by the Wakf Board in WP No.1 726 of 1968 filed in this Court. The said writ petition was dismissed on 22.4.1970 as No.148 of 1967 filed by the Wakf Board was also dismissed by the learned Subordinate Judge, Visakhapatnam on 14.2.1975. In the further enquiry undertaken by the Inam Deputy Tahsildar under Section 3(1) of the 1956 Act, he held that the lands situated in Sy.Nos.212 to 216 are inam lands in Inam village and they are not held by the institution i.e., Darga, Visakhapatnam. In the further enquiry undertaken by the Inam Deputy Tahsildar under Section 3(1) of the 1956 Act, he held that the lands situated in Sy.Nos.212 to 216 are inam lands in Inam village and they are not held by the institution i.e., Darga, Visakhapatnam. AS No.89 of 1976 filed against the judgment in as No.148 of 1967 was allowed and the suit was decreed by this Court by judgment and decree dated 6.8.1984. The said appeal was, however, dismissed against L.D. Daruwala, who was respondent No.14 in the appeal and who died, on the ground that his legal representatives were not brought on record. Various notifications were published in the years 1991 and 1992 by the State Government seeking to acquire the land under Section 4(1) of the Land Acquisition Act, 1894 (for short, 'the 1894 Act'). An award was passed in respect of Acs.767.40 cents and disputes were referred under Sections 30 and 31 of the 1894 Act to the District Court, Visakhapatnam. Civil Appeal.No.4372 of 1985 filed by some of the respondents in A.S.No.89 of 1976 before the Supreme Court was dismissed by the Apex Court confirming the judgment of this Court in AS No.89 of 1976 (Sayyed AU and others v. Andhra Pradesh Waif Board. Hyderabad and others, AIR 1998 SC 972 = 1998 (2) ALD (SCSN) 31). The Supreme Court held that the disputed property was shown as Wakf property in the Andhra Pradesh Official Gazette on 30.11.1961 and that no suit having been filed challenging the said notification, the entries in the Official Gazette describing the property as Wakf became final and conclusive. The Supreme Court held that the finding of the Tahsildar that the property was not Wakf was wholly erroneous and beyond his jurisdiction and that such a finding does not constitute res judicata in the subsequent suit filed by the Wakf Board. On these premises, the Supreme Court held that the decision of the Tahsildar under Section 3 of the 1956 Act, as to the character of the Wakf property, which was upheld by this Court, was one without jurisdiction. The Supreme Court repelled the contention advanced on behalf of Mokhasadars that once patta under the 1956 Act was granted, it was not open to the High Court to hold that the property was a Wakf property. The Supreme Court repelled the contention advanced on behalf of Mokhasadars that once patta under the 1956 Act was granted, it was not open to the High Court to hold that the property was a Wakf property. It is useful to reproduce paragraph 14 of the judgment here-in-below: "Lastly, it was contended by the learned Counsel for the appellant that once patta, under the Inams Act, having been granted in favour of Mokhasadar, it was not open to the High Court to hold that the property was a Wakf property. In other words, the argument seems to proceed on the basis that once patta has been granted under the Inams Act to Mokhasadars, the land has ceased to be a Wakf property. It may be stated that a Wakf is permanent dedication of property for purposes recognized by Muslim Law as pious, religious or charitable and the property having been found as Wakf would always retain its character as a Wakf. In other words once a Wakf always a Wakf and the grant of patta in favour of Mokhasadar under the Inams Act does not, in any manner, nullify the earlier dedication made of the property constituting the same as Wakf After a Wakf has been created, it continues to be so far all time to come and further continues to be governed by the provisions of the Wakf Act and a grant of patta in favour of Mokhasadar does not affect the original character of the Wakf property. We accordingly find no substance in the last argument of learned Counsel for the appellant." (Emphasis added) 6. After disposal of the case by the Supreme Court in its judgment referred to above, the State Government issued two G.Os., namely, G.O. Ms. Nos.239 and 711 dated 22.3.1999 and 5.10.1999 respectively. We accordingly find no substance in the last argument of learned Counsel for the appellant." (Emphasis added) 6. After disposal of the case by the Supreme Court in its judgment referred to above, the State Government issued two G.Os., namely, G.O. Ms. Nos.239 and 711 dated 22.3.1999 and 5.10.1999 respectively. In the former G.O., the State Government had taken note of the judgment of the Supreme Court referred to above and observed that it is not a party to the proceedings before the Supreme Court and that in order to put an end to the prolonged litigation and to arrive at a consensus in an amicable manner, it directed the lands, which purportedly vested in it under Section 2A of the 1956 Act, be alienated in favour of Hinduja National Power Corporation Limited for the purpose of establishment of power project, subject to the following apportionment: (a) 30% of the amount shall be credited to the Government account. (b) 35% of the amount shall be paid to the Wakf Board. (c) 35% of the amount shall be paid to the occupants/encroachers, if any. (d) The cost of the trees and structures shall be estimated and paid to the persons interested." 7. In the latter G.O., the Government directed alienation of Acs.836.90 cents in favour of National Thermal Power Corporation Limited (NTPC) for common corridor, subject to the same apportionment as was ordered in G.O. Ms. No.239. 8. The appellants in WA Nos.1408 and 1410 of 2002 filed WP No.10468 of 1999 questioning G.O. Ms. No.239 dated 22.3.1999 and WP No.21674 of 1999 questioning G.O. Ms. No.711 dated 5.10.1999. They claimed compensation payable in terms of the disputed lands as successors of late Lokmanji Rajabali Daruwala, the last of the sub-lessees out of successive lease/sub-lease transactions commencing from the initial leases granted by the Mokhasadars in the year 1949. Respondent Nos.6 to 126 in WP Nos. 1 0468 and 21674 of 1999 (for short, "respondent Nos.6 to 126") got impleaded in the said two writ petitions and they claimed the 35% of the compensation, which was apportioned by the Government in favour of occupants/encroachers as cultivating tenants. 9. Respondent Nos.6 to 126 in WP Nos. 1 0468 and 21674 of 1999 (for short, "respondent Nos.6 to 126") got impleaded in the said two writ petitions and they claimed the 35% of the compensation, which was apportioned by the Government in favour of occupants/encroachers as cultivating tenants. 9. The learned Single Judge having relied upon the judgment of the Supreme Court in Sayyed Ali’s case (supra), rejected the contention advanced on behalf of the appellants that the findings rendered by the Supreme Court without referring to certain important provisions of the relevant Acts are not binding and held that the judgment of the Supreme Court covered the same property, which was in dispute in the writ petitions and it binds everyone including the appellants in view of Article 14 of the Constitution. The learned Single Judge further held that even though the appeal was dismissed against late Daruwala, as he was a sub-lessee, he cannot acquire better interest than the original lease holder. The learned Judge therefore held that the sub-leases are invalid and the appellants do not derive any interest there from. The learned Judge also rejected the contention advanced, based on Sections 7 and 8 of the 1956 Act, that the writ petitioners - appellants must be held to be tenants in possession and hence they have a right to claim compensation. 10. The learned Single Judge having thus rejected the claim of the appellants over the compensation, however, went a step further in directing the District Collector, Visakhapatnam to disburse 35% of the compensation amount payable under the head "occupants/encroachers" to respondent Nos.6 to 126 after identifying them. The learned Judge also directed that the respective shares of 35% and 30% payable to the Wakf Board and the Government respectively also be disbursed within a time flame stipulated in the order. The writ petitioners and the Government filed these four appeals against the said order. While the writ petitioners filed their appeals against the entire order of the learned Judge, the Government and the District Collector filed W A Nos.1454 and 2068 of 2002 partly aggrieved by the direction of the learned Single Judge to disburse 35% of the compensation amount to respondent Nos.6 to 126. While the writ petitioners filed their appeals against the entire order of the learned Judge, the Government and the District Collector filed W A Nos.1454 and 2068 of 2002 partly aggrieved by the direction of the learned Single Judge to disburse 35% of the compensation amount to respondent Nos.6 to 126. WP No.12296 of 2001, as already stated hereinbefore, was filed by Shree Krishna Salt Works' claiming its right over the part of 35% of compensation apportioned in favour of occupants/encroachers on the ground that they were in occupation of an extent of Acs.306.28 cents in Sy.No.491 from the year 1952 as an encroacher. 11. The third parties to the writ petitions, who are appellants in WA No.2101 of 2002, filed the said writ appeal having felt aggrieved by the order of the learned Single Judge to the extent of directing the District Collector to pay 35% of compensation to respondent Nos.6 to 126. They claim to be the tenants of some of the lessees of the disputed land. 12. We have heard Sri Mavidi Rama Rao, learned Counsel for the appellants in WA Nos.1408 and 1410 of 2002, learned Special Government Pleader appearing for the learned Advocate General for the appellants in WA Nos.2068 and 1454 of 2002, Sri E. Madan Mohan Rao, learned Counsel for the appellants in WA No.21 0 I of 2002 and Sri Vedula Venkataramana learned Counsel representing respondent Nos.6 to 126 in the writ petitions, who are also respondents in these writ appeals. 13. During the course of hearing, Sri Mavidi Rama Rao filed a memo enclosing G.O. Ms. No. 10, Minorities Welfare (Wakf-1) Department, dated 7.3.2008. He also supplied copies of the said G.O., to all the learned Counsel. We have perused the said G.O. The Government having placed the entire background of the dispute in the said G.O., mentioned in Para 12 that in the light of the clear judgments of this Court in WP No.2364 of 2004 and of the Supreme Court in Sayyed Ali's case (supra), the Hon'ble the Chief Minister observed that the said judgments must be respected, that the land in question will be treated as Wakf land and that the Revenue Department will withdraw petitions against the Wakf Board pending in various Courts, if any, and SLP Nos.14717 to 14720 of 1999 filed in the Supreme Court. In the said G.O., the Government directed as under: “(i) Declare the entire land of Acs.5385.31 cents in Survey Nos.1-216 (old) corresponding to new Survey Nos.1-539 of Devada Village, Visakhapatnam as Wakf land relating to Dargah Hazrat Syed Ali Shah Ishag Madani Rh., as Wakf land. (ii) That the Collector, Visakhapatnam shall take necessary action to cancel all the Ryotwari Patta Certificate issued under Inam Abolition Act, if any, pertaining to the Wakf land." 14. Interestingly, though a reference was made to G.O. Ms. Nos.239 and 711, nothing is mentioned in G.O. Ms. No.10, whether the said G.O. was issued in super-session of the earlier two G.Os. or in continuation of the same. In the present proceedings before us, it is not necessary for us to pronounce upon this aspect of the matter, because the two issues, which arise for consideration before us in these cases, are whether the writ petitioners, who are the appellants in WA Nos.1408 and 1410 of 2002 have any right over the compensation as successors to Mokhasdars and whether the directions given by the learned Single Judge to the District Collector to pay 35% of compensation to respondent Nos.6 to 126 in the writ petitions is sustainable. 15. As regards the first issue, we are entirely in agreement with the view of the learned Single Judge. The judgment of the Supreme Court in Sayyed Ali's case (supra), constitutes a binding precedent, irrespective of whether any of the relevant aspects were•. considered by the Supreme Court or not. Whether the appellants are parties or not, the judgment operates as a judgment in rem and the declaration that the entire property is a Wakf property binds everyone including the appellants. Indeed, the Government eventually realized this position in law and issued G.O. Ms. No.10 referred to above by declaring the entire property as of the Wakf. We have therefore no reason to interfere with the finding of the learned Single Judge that the writ petitioners cannot claim any interest as lessees of Mokhasadars. 16. Coming to the directions given by the learned Single Judge for disbursement of 35% of compensation to respondent Nos.6 to 126, in our opinion, these directions travel far behind the scope of WP Nos.10468 and 21674 of 1999. 16. Coming to the directions given by the learned Single Judge for disbursement of 35% of compensation to respondent Nos.6 to 126, in our opinion, these directions travel far behind the scope of WP Nos.10468 and 21674 of 1999. As the writ petitioners therein failed to make out a case for granting relief in their favour, there can be no further question of granting directions in favour of respondent Nos.6 to 126. Even if the two earlier G.Os. are required to be implemented, the authority competent to disburse the 35% of compensation is required to examine the claims of various occupants/ encroachers. With the issue of G.O. Ms. No.10, a further question may arise regarding the competence of the State Government to direct disbursement of any part of compensation to anyone other than the Wakf itself. These questions are therefore to be necessarily adjudicated by the competent forum in appropriate proceedings that may be initiated by the parties concerned. Therefore, the directions contained in the order under appeal, directing the District Collector to disburse the 35% of compensation amount to respondent Nos.6 to 126, cannot be sustained. 17. All the learned Counsel appearing for their respective parties also fairly agreed that the directions given by the learned Single Judge to the above extent may be set aside and the parties may be left free to agitate their rights for the compensation payable under the three G.Os. before appropriate forum. 18. Accordingly, the direction to the District Collector contained in the order under appeal to disburse 35% of compensation amount to respondent Nos.6 to 126 is set aside. The remaining order of the learned Single Judge, whereby the claim of the appellants in WA Nos. 1408 and 1410 of 2002 to receive compensation as Mokhasadars, is upheld. 19. All the private parties to these writ appeals and the writ petition and the Wakf Board are accordingly given liberty to avail appropriate remedies before competent fora regarding payment of any part of compensation pertaining to the lands in dispute, if they are so entitled according to law. 20. Subject to the above, all the writ appeals and the writ petition are disposed of.