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2012 Supreme(AP) 379

High Court of Andhra Pradesh
THE HONOURABLE MR. JUSTICE V.V.S.RAO & THE HONOURABLE MR. JUSTICE R.KANTHA RAO
Lanco Hills Technology Park Private Limited
Versus
Mahaboob Alam Khan & Others
CIVIL REVISION PETITION Nos.4958, 5028, 5314 of 2007 AND 521, 1384, 1444 and 2304 of 2011
Decided on : 03-04-2012

Advocates appeared:
For the Petitioner:M/s. Soli J.Sorabjee, Senior Counsel, Advocate General, D.Prakash Reddy, M.S.Srinivasa Iyengar, Advocates.
For the Respondents:R3, R6 to R10 & R17, Advocate General, R4, S.R.Mahajir, R5, M.V.S.Suresh Kumar, R11, P.Venugopal, R12, D.Prakash Reddy, Senior Counsel, C.Kodanda Ram, Senior Counsel, R15, C.Kodanda Ram, Senior Counsel.
Judgment :

Headnote:A) WAKF ACT, 1995, Sections 6 (1), 83 (2) and 83 (5) - Civil Procedure Code, 1908, Order 39 Rules 1 and 2 – Where the Wakf Tribunal has been approached by the Dargha in possession of the lands in Manikonda area by virtue of the Notification by the Government in declaring them to be wakf property, the Tribunal has every power and jurisdiction to issue an interim injunction in favour of the petitioner as the triple test of prima facie case, balance of convenience and irrepairable damage or injury and hence the objection raised by the trespasser that huge bank loans were raised for constructing residential houses on the same is not tenable.

       B) WAKF ACT, 1995, Sections 83 (2) and (5) - Civil Procedure Code, 1908, Order 39 Rules 1 and 2 – The errata notification vesting the lands in Manikonda on the dargha has the effect of vesting it as on the date of original notification and hence the plea to the contrary by the respondents original.

       C) WAKF ACT, 1995, Sections 83 (2) and (5) - Civil Procedure Code, 1908, Order 39 Rules 1 and 2 – Where the Tribunal came to the conclusion that the prima faice case and balance of convinece are there and if the injunction is not granted the respondents gains an unfair advantage of pleading equities contrary to the larger interest of public purpose by alienating residential house constructed contrary to the original terms of assignment, then possible business loss is not a criteria for denying the injunction.

COMMON ORDER:

V.V.S.Rao, J.

These petitions under Article 227 of the Constitution of India are against the orders passed by the Andhra Pradesh Wakf Tribunal (the Wakf Tribunal, for brevity). The contentious issues survive only in CRP Nos.1384 and 1444 of 2011. The Andhra Pradesh State Wakf Board (the Wakf Board, for brevity) and Dargah Hazrat Hussain Shah Vali (the Dargah, for brevity) join the issue with the petitioners therein. All other revisions do not require adjudication for one reason or the other.

At the outset, be it recorded that a decision of the Wakf Tribunal shall be final and binding on the parties to the application and no appeal shall lie against the decision or order whether interim or otherwise given or made by the Wakf Tribunal (Sections 83(2),

(7) and (9) of the Wakf Act, 1995 (the Wakf Act). Nonetheless the proviso to Section 83

(9) of the Wakf Act vests revisional jurisdiction in the High Court to call for and examine the records relating to a decision or order of the Wakf Tribunal, for the purpose of satisfying itself as to the correctness, legality or propriety of such an order. The provision enables the High Court to confirm, review or modify the decision impugned. The civil revision petitions, as mentioned at the outset, are curiously filed under Article 227 of the Constitution. When statutory forum is created for redressal of grievance, even if it is High Court, a revision under Article 227 is not maintainable (Sadhana Lodh v National Insurance Co. Ltd., (2003) 3 SCC 524 : AIR 2003 SC 1561 and Raj Kumar Shivhare v Directorate of Enforcement (2010) 4 SCC 772).

The brief background facts culled out from CRP No.1384 and C.R.P.No.4958 of 2007 are the following (parties referred to as arrayed in the first petition). The Dargah; managed by a committee, is a registered Wakf. It was notified in the Andhra Pradesh Gazette No.6A, dated 09.2.1989 at Sl.Nos.3057, 3058 and 3059 showing an extent of 3,165 Sq.yards of Dargah, 1,272 Sq.yards of Khanqah with mosque and Well, and 1,069.5 Sq.yards of house on the northern side of Khanqah in Survey Nos.260/1, 261 and 262. The nature and object of the Wakf is Fateha, prayer and residence of Muthavalli. The Dargah claims that a large extent of Acs.1,654.32 guntas One acre = 40 guntas; one gunta = 121 Sq.yards. comprised in about 78 survey numbers situated at Manikonda Jagir village of Rajendranagar Mandal in Ranga Reddy District (hereafter Manikonda lands or subject land) remained unnotified even through various documents viz., Muntakhab No.2643, (31 Amardad 1300 Fasli) 1890 AD issued prior to the VI Nizam, the orders of the Nazim-e-Atiyat, and the High Court of Andhra Pradesh, declared the land as grant to the Dargah.

The Wakf Board by letter dated 02.09.2005 addressed the Survey Commissioner of Wakfs to send the necessary amendment to include the land in the notification. In response thereto, the latter vide letter dated 30.09.2005 sent the second survey report along with the details of service inam land attached to it. Some time thereafter, the Wakf Board issued an addendum/errata to earlier Notification declaring that the subject land, “as the service inam lands attached to the subject institution were not notified earlier”. In the meanwhile, the Government of A.P., alienated Manikonda lands to Andhra Pradesh Industrial Infrastructure Corporation Limited (APIIC). They in turn allotted considerable extents of lands to unofficial respondents (allottees, for brevity) mostly for establishment of ICT enabled enterprises. There are writ proceedings before this Court initiated by persons acting pro bono publico or Dargah. Indeed, the Government of A.P., also filed a writ petition seeking invalidation of the errata notification. In all these proceedings, the Government as well as allottees questioned the addendum issued by the Wakf Board attaching Manikonda lands to the Dargah. M/s.Mehaboob Alam Khan and Ibrahim Bin Abdullah Masquati (hereafter, persons interested) filed O














































































































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