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2010 DIGILAW 571 (AP)

Yousuf Begum v. Wakf Board

2010-07-06

V.V.S.RAO

body2010
Judgment The petitioner filed the instant writ petition seeking the following relief. For the reasons stated in the accompanying affidavit, it is prayed that this Hon’ble Court issue a Writ of Mandamus declaring the action of the respondent Wakf Board in trying to interfere with the property of the petitioner mentioned in Muntakhab 157, dated 21 Aban 1301 Fasli equivalent to 28th Sept 1892 A.D., and also in Setwar & Vasool Baqi and in withholding the paper release of the property despite the admitted fact being that the Wakf Board has no title or claim over the property mentioned in Muntakhab 157 belonging to the Petitioner as illegal, unconstitutional and violative of interalia Article 14, 21 & 300-A of the Constitution of India and consequently direct the Wakf Board to issue a formal paper release letter and not to interfere with the property of the petitioner mentioned in Muntakhab 157 of Attapur etc., and pass such other order or orders in the interest of justice. A reading of the relief prayed would suggest that the petitioner is in possession of the land covered by Muntakhab No.157, dated 21 Aban 1301 Fasli (28.09.1892 AD) and that the respondents, Andhra Pradesh State Wakf Board and Mandal Revenue Officer, Rajendranagar Mandal, are trying to interfere with her possession. Insofar as the other relief that of directing the respondents to issue a formal publication is concerned, at the first blush it appears to be vague. The affidavit accompanying the writ petition and the various documents filed in support of some of the averments in the affidavit also do not clearly indicate the grievance of the petitioner and the relief she seeks under Article 226 of the Constitution of India. But, having regard to the advanced age of the petitioner (more than 90 years) this Court heard Counsel Sri Moinuddin at length. The case of the petitioner in brief is as follows. The property covered by Muntakhab No.157 and Muntakhab No.959 (Malkajgiri property) was owned by Hazrat Mir Mahmood Aulia allegedly resolved in judgment in 104 of 1286 Fasli of Nizam High Court, Hyderabad. Statedly, Muntakhab No.157 covers about Acs.4.00 of land situated at Attapur Village, now in Rajendra Nagar Mandal in Ranga Reddy District (subject property, for brevity). After death of the original owner, his son Syed Munawar Ali Hussaini, succeeded to the property. Statedly, Muntakhab No.157 covers about Acs.4.00 of land situated at Attapur Village, now in Rajendra Nagar Mandal in Ranga Reddy District (subject property, for brevity). After death of the original owner, his son Syed Munawar Ali Hussaini, succeeded to the property. The succession was allegedly recorded in Muntakhab No.959 and Muntakhab No.157. It appears, he died in 1981 leaving behind seven sons/seven Muntakhab holders. The petitioner herein is a granddaughter of Muntakhab holder 2, and Muntakhab holders 3 to 6 died issueless. Muntakhab holder 1 Syed Shah Ali Raza disputed succession. Therefore, as directed by Nizam, the property was taken over by the Court of Ward with a mandate that property should be released in favour of the successor. After the abolition of Court of Ward properties were transferred to Umoor-e-Mazabi, the Department of Nizam State. After merger of Hyderabad State into Union of India the properties were transferred to the supervision of Andhra Pradesh Wakf Board. In the meanwhile, Smt.Faizunnisa Begum, daughter of Muntakhab holder 1 was declared as successor to the estate of the original ancestor (Hazrat Mir Mahmood Aulia) as per the orders dated 26.11.1951 of the Additional Collector, Hyderabad, in File No.36/58. The same was upheld by Nizam Atiyat in first appeal, being File No.87/63 of 1951, dated 11.10.1952, as well as second appeal by the Board of Revenue in S.A.No.25/52, dated 04.06.1955. After death of Smt.Faizunnisa Begum disputes arose regarding the property covered by Muntakhab No.959. The same was resolved in W.P.No.211 of 1966 by this Court and in O.S.No.15 of 1967 on the file of the Court of the I Additional Chief Judge, City Civil Court, Hyderabad. The petitioner was allegedly declared as Khabiz-e-Nasg, administrator of Dargah and Mutawalli. In proceedings No.E-3/19383/1966, dated 29.10.1966, the District Collector, Hyderabad, granted succession to the petitioner. The petitioner was addressed a letter allegedly releasing Malkajgiri property as per the resolution of Wakf Board, being No.150 of 1969 dated 23.06.1969. But Wakf Board did not issue a formal letter releasing Attapur property covered by Muntakhab No.157. Therefore, the petitioner got issued a legal notice dated 05.02.2001 requesting to issue a letter to the Accountant General for payment of royal grant and for complying with the judgment of this Court in C.C.C.A.No.47 of 1979 as confirmed by the Supreme Court in Civil Appeal No.2393 of 1984. Therefore, the petitioner got issued a legal notice dated 05.02.2001 requesting to issue a letter to the Accountant General for payment of royal grant and for complying with the judgment of this Court in C.C.C.A.No.47 of 1979 as confirmed by the Supreme Court in Civil Appeal No.2393 of 1984. Alleging that the Wakf Board did not respond to the said notice, the present writ petition is filed. The first respondent filed counter affidavit. Though notice is served, the second respondent has not chosen to file counter affidavit. The main allegations are made and a relief is sought against the first respondent, and therefore, the counter affidavit filed by the first respondent assumes importance. The Chief Executive Officer, first respondent, states that the land covered by Muntakhab No.157 is service inam land (Mushrootul inam) to Dargah Hazrath Mir Mahmood Saheb situated at Attapur (hereafter, the subject wakf). The land is not localized nor classified with survey number. As it is a service inam the inamdars can only enjoy the fruits subject to rendering service to the Institution. The petitioner or her predecessors cannot claim any right. The petitioner is not in possession of the land and most of the property has been sold, and houses have been constructed illegally by the petitioner and her relatives. By resolution No.150/1969 it was resolved to pay wakf fund of 6% of the total compensation amount for the land acquired by the Government but it was not resolved to release wakf land at Malkajgiri. The petitioner who was declared as Muntakhab holder by the Atiyat Court has not been recognized by the Wakf Board under the provisions of the Wakf Act, 1995. The Mutawallis were in possession of the land rendering service to Dargah. The judgment of the civil Courts and the Atiyat Courts are not binding on the Wakf Board as it is not a party to those proceedings. Even otherwise, the Muntakhab holder can utilize the income of the property as per the terms and conditions mentioned in the Muntakhab by adopting the rule of Suls-e-Sulsan (rule of succession). The inam land at Malkajgiri and Attapur covered by two Muntakhabs belong to the Dargah. The Malkajgiri lands have been published in A.P.Gazette as per Section 5(2) of the Wakf Act. The inam land at Malkajgiri and Attapur covered by two Muntakhabs belong to the Dargah. The Malkajgiri lands have been published in A.P.Gazette as per Section 5(2) of the Wakf Act. The land is under the Government supervision pending grant of succession, and therefore, it continued to be under the supervision of the Wakf Board. The petitioner was never in possession of the property. The Counsel for the petitioner submits that in view of the various judgments of the civil Court, Atiyat Court and High Court, the petitioner has been declared as successor of Muntakhab holders, and therefore, the Wakf Board cannot continue to keep the property under their supervision. According to the Counsel pending the succession dispute when the land was given custody to the Wakf Board, after finality to the dispute the Wakf Board is bound to release the property in favour of the petitioner who is the lone surviving Muntakhab holder. Per contra, the Counsel for the Wakf Board submits that in the earlier enquires for granting succession Wakf Board is not a party, and therefore, those judgments are not binding. The property belongs to Wakf Institution i.e., Dargah, and therefore, the enquiry under the Andhra Pradesh (Telangana Area) Atiyat Enquiries Act, 1952 (Atiyat Act), is not relevant. Relying on Sections 2(a) and 2(c) of the Atiyat Act read with Section 3 of the Atiyat Act, he submits that any grant of succession is always subject to conditions mentioned in Muntakhab. As the Muntakhab itself makes it clear that it is a service inam to be enjoyed by Muntakhab holders subject to conditions the petitioner cannot get any absolute title. He placed reliance on various judgments of the High Court and Supreme Court. The submission of the Counsel for the petitioner that there is no dispute about the nature of holding and ownership cannot be accepted. By reason of the various counter averments it is abundantly clear that there is a dispute between the Wakf Board and the petitioner as to the nature of the holding under Muntakhab No.157. If it is a service inam the question of the petitioner getting the absolute title would not arise in view of the proviso to Section 4(1) of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. If it is a service inam the question of the petitioner getting the absolute title would not arise in view of the proviso to Section 4(1) of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. Therefore, even if the property was initially brought into the custody of the Wakf Board pending the dispute, the Wakf Board cannot be compelled to abdicate their duties to protect the property of the Institution in view of Sections 27, 32 and 40 of the Wakf Act. Furthermore, admittedly the petitioner or her predecessors never filed any declarations under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 or the Urban Land (Ceiling and Regulation) Act, 1976. If the petitioner claimed exclusive title, and extent is more than Acs.400.00 the petitioner ought to have filed declarations. She cannot now be heard that the long drawn legal battle prevented her from filing such declarations. The dispute raised in this writ petition is one of fact. Secondly, when the land is claimed by the Wakf Board, such dispute has to be resolved by the Wakf Tribunal constituted under the Wakf Act. The remedy provided under Section 83(2) of the Wakf Act is the effective alternative remedy as held by this Court in M.Bikshapathi v Government of Andhra Pradesh ( 1999 (6) ALD 270 (DB)), Allauddin Charities and Zakath Wakf v Hameed Ali ( 2002 (1) ALD 67 (DB) and Syed Muneer v Chief Executive Officer, A.P.State Wakf Board ( 2001 (4) ALD 430 = 2001 (2) LS 321 ). Further, if the relief as claimed is granted it would amount to compelling the Wakf Board to relinquish their right to manage the wakf property and also to compel them to abdicate their duty under various provisions of the Wakf Act. Such a writ cannot be issued by this Court. The petitioner is, therefore, given liberty to avail the remedy before the Wakf Tribunal. In the result, for the above reasons, the Writ Petition fails and is accordingly dismissed. There shall be no order as to costs.