HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
CIVIL REVISION PETITION Nos.174 and 278 of 2021
COMMON ORDER:
These two Revisions arise out of the same suit between the
same parties and so they are being disposed of by this common order.
2. Respondent Nos.1 to 7 in these Revisions are plaintiffs in the
suit.
3. The suit was actually filed O.S.No.26 of 2007 before the then A.P. Wakf Tribunal at Hyderabad, and it was renumbered as O.S.No.99 of 2016 after bifurcation of the composite State of Andhra Pradesh into the State of Telangana and the residuary State of Andhra Pradesh by the Telangana State Wakf Tribunal at Hyderabad. The parties to the suit
4. In the said suit, the State of Andhra Pradesh represented by its Chief Secretary was arrayed as the 1st defendant. The Government of A.P. Minority Welfare (Wakf-II), Department, represented by its Principal Secretary was arrayed as 2nd defendant. The Quli Qutab Shah Urban Development Authority represented by its Commissioner was arrayed as 3rd defendant. The Archaeology and Museums, Government of Andhra Pradesh represented by its Director / Commissioner was arrayed as 4th defendant. The Secretary Awqaf Committee, HEH the Nizam was arrayed as 5th defendant. The A.P. State Wakf Board represented by its Chief Executive Officer was ::2::
arrayed as 6th defendant. The Aga Khan Trust for Culture, represented by Project Director was arrayed as 7th defendant and A.P. Tourism and Cultural Department, represented by its Principal Secretary was arrayed as 8th defendant. Defendant Nos.6 to 8 were impleaded as per orders dt.20.04.2013 passed in I.A.No.71 of 2013.
5. For the sake of convenience, the parties will be referred to as per their array in the suit.
The plaint schedule properties
6. There are two schedules to the suit.
7. The first schedule covering an extent of Ac.22.00 of land known as 'Deccan Park' and 'Acqua Park' in T.S.No. Block 1 of Ward No.8 situated at Golconda Fort, Shaikpet village, Hyderabad District with the following boundaries:
"West : Area of 7 Tombs under custody of defendant No.4. East : Road leading to Golconda Fort to Tolichowki South : Alijapur Road North : Area of 7 Tobs under custody of Defendant No.4".
8. The other schedule comprises an extent of Ac.103.30 gts with structures, Tombs, Mosques, Idgha, Gardens and Graveyards and also falling within the same T.S.number, Block No.8 situated at situated at Golconda Fort, Shaikpet village, Hyderabad District with the following boundaries:
"West : Open Lnd Shaikpet village (abadi), East : Road leading to Golconda Fort to Tolichowki ::3::
South : Alijapur Road North : Land of Shaikpet village (abadi).".
The case of the plaintiffs
9. The plaintiffs contended that they are 'persons interested' in the wakf defined under Section 3 (k) of the Wakf Act,1995 and having common interest in the reliefs sought in the suit for safeguarding the suit schedule property.
10. According to them, in North-Western side of Hyderabad city, an area of Ac.103.30 gts was reserved for the existing Ancient and Historical Monuments belong to Qutab Shahi Dynasty, whose Kings had ruled southern part of India; that there are 7 Tombs with Graveyards, Mosques, Idgha and Gardens in this area and it was made a wakf by the then ruler of Hyderabad Deccan viz., the HEH the Nizam of Hyderabad; that the said extent of wakf land was further confirmed under Muntakhab No.40 dt.16.08.1956, and the said extent was also confirmed by a re-survey conducted by the A.P. State Wakf Board through its Survey Commissioner Wakfs.
11. Plaintiffs contended that in this area, there are 7 Tombs with Graveyards, Mosques, Idgha and Gardens comprising Ac.56.26 gts and the remaining extent of Ac.47.26 gts was earmarked for Idgha, Mosques, Garden and attached Graveyards belonging to Shia and Sunni Communities and that the suit is being filed for an extent of Ac.22.00 being encroached by the 3rd defendant. The plaintiffs have also sought delivery of entire extent of Ac.103.30 gts.
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12. They alleged that monuments were in the care and custody of H.E.H. The Nizam Awaqf Committee (5th defendant) who was acting as Muthawalli, and later the H.E.H. the Nizam the VIII settled the entire extent of Ac.103.30 gts with Umoor-e-Mazhabi, and after promulgation of the Wakf Act, 1954, it was later notified as Wakf Property in the A.P. Official Gazette in 1982 after due survey.
13. Plaintiffs contended that management of the property, however, remained with the H.E.H. The Nizam VIII through 5th defendant and after passing of the A.P. Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1960 (for short 'the Act'), there is an agreement between the then State of Andhra Pradesh represented by His Excellency, the Government of Andhra Pradesh on one hand and the HEH the Nizam VIII of Hyderabad on 16.05.1977, and under the said instrument, the HEH Nizam handed over entire extent of land to the 4th defendant with an intention that 4th defendant would be the custodian of the property and would maintain and safeguard the ancient historical monuments of Qutub Shahi Era.
14. Plaintiffs alleged that the HEH the Nizam VIII was only a Muthawalli and he cannot delegate his power to defendant No.4 and put him in his place without the sanction of defendant Nos.1, 2 and 6 and agreement dt.16.05.1977 is null and void.
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15. Subsequently, there was a decision taken to develop and to beautify the surroundings of the property, that the 3rd defendant proposed to defendant No.1, who approved it in G.O.No.666 (Edn) dt.26.04.1965 and G.O.No.2039 (L) Department dt.10.11.1968 to develop gardens in the vicinity of seven Tombs in the above property.
16. It is alleged that defendant Nos.1 and 2, without any right, title and authority, in consultation with the 3rd defendant proposed to set up an amusement park called 'Deccan Park' and aqua park in the suit schedule property, that 3rd defendant encroached part of the Idgha and Graveyard (by demolishing the graves) and its attached lands and laid a railway track and also constructed platform facing the Idgah for cultural programmes within the vicinity of the land consisting of Mosques, Idgha and Graveyard including the graves of Quli Qutub Shah's family.
17. According to the plaintiffs, such illegal construction activities on the encroached land was falling within the 'prohibited areas' of archaeological sites having historical importance, that they cannot be allowed and is in violation of provisions of the Act.
18. They contended that though defendant Nos.4 to 6 never authorized or gave NOC for any activities, the illegal activities are being carried out by 3rd defendant viz., to promote recreation; and amusement park and illegal constructions were being made in open land of Idgha earmarked for prayers and encroaching the land by ::6::
damaging and removing the graves and they laid railway track and black top road was also laid in 2002 using heavy machinery.
19. The plaintiffs issued notices under Section 80 C.P.C. and 89 of the Wakf Act seeking re-delivery of possession from the 3rd defendant. It is alleged that defendant Nos.4 to 6 have adopted silence for the illegal acts committed by the 3rd defendant and so plaintiffs are constrained to file the suit.
The reliefs claimed in the suit
20. Several reliefs as under have been sought in the suit.
"I. To declare that the agreement dt.16.05.1977 alleged to have been executed by the HEZ the Nizam VIII Mir Barkat Ali Khan and Hon'ble Governor of State of Andhra Pradesh on behalf of defendant No.4 is illegal, without sanctions, null and void and do not have any legal effect.
II. To declare the handing over or delivery of Management of the said property by the HEH the Nizam VIII Mir Barkat Ali Khan to defendant No.4 through the Hon'ble the Governor of State of Andhra Pradesh is without jurisdiction and without sanctions of defendant No.2 and 6 is illegal and void;
III. To direct the defendant No.4 to re-deliver the management, its superintendence, custody of the said property forthwith to defendant No.2 and 6 or otherwise to any private agency Trust comprising of prominent person of the Hyderabad City having knowledge of wakf.
IV. To declare all the acts of the defendant No.1, 2, 4 to 6 allowing the defendant No.3 to encroach and to carry out its illegal construction on the suit property is illegal, ultra vires, high handed, null and void and against the law.
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V. To declare the all acts of the defendant No.4 in breaching the terms of the agreements dt.06.05.1977 exercising the powers beyond jurisdiction is void.
VI. Todirect the defendant No.3 to re-deliver the possession of the suit property to the defendant No.2, 5 and 6 or any other institution or Trust comprising of prominent persons of Hyderabad having knowledge of Wakf Act or as directed by this Hon'ble Tribunal. VII. To direct the defendant No.4 to render the accounts of the said property from 1977 to till now date of the suit, failing which to attach the properties of defendant No.4, including the properties of defendant Nos.1 and 3.
VIII. To issue mandatory injunction directing the defendant No.4 to re-deliver the management, its superintendence, custody of said property to any Managing Committee of any private institution, Trust comprising of prominent persons of Hyderabad having knowledge of Wakf Act.
IX, To issue mandatory injunction directing the defendant No.3 to remove railway tracks and toy train other constructions and machinery forthwith from the suit property.
X. To award damages against the defendant No.3 for the use and occupation of the suit property comprising of Ac.22.00 @ Rs.1.00 lakh p.m. (Rupees one lakh only) from the date of the suit till possession is re-delivered.
XI. To grant perpetual injunction restraining the defendant No.3, their agents, Engineers, Contractors, Servants or any other persons claiming under defendant No.3 be restrained from changing the nature of suit property by installation of machinery, any constructions, cutting down the trees etc., including opening of Deccan Park and Aqua Park in suit property pending disposal of the suit.
XII. To award the costs of the suit."
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The amendment to the plaint
21. Thereafter the plaint was amended in I.A.No.665 of 2013 dt.29.10.2013 and the subsequent event of an MoU dt.09.01.2013 executed between defendant Nos.3 and 4 on one hand and the 7th defendant on the other hand was challenged.
22. Under this MoU, the 7th defendant was permitted by defendant Nos.3 and 4 purportedly for conservation of all structures in, what was called as 'Project Area', landscaping the same, to integrate the Deccan Park in the three Zones and providing design assistance for the building of tourist infrastructure.
23. The plaintiffs contend that 4th defendant is only custodian/guardian to look after the monuments under the terms of agreement dt.17.05.1977, that he was not authorized to enter into any transaction with any third party for repairs and maintenance of the monuments without sanction from the 2nd defendant and permission from defendant Nos.5 and 6.
24. It was alleged that without sanction of the Wakf Board, no acts can be committed by 7th defendant and the proposal made by the 7th defendant for erecting the Interpretation Centre to be constructed in the Deccan Park would destroy the monuments and it is impermissible as per the Act because it would be only 60 meters away from the outer walls of the ancient monuments which come under the 'protected zone'.
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25. Thus, the plaintiffs claim that their endevaour is to protect the Qutab Shai Toombs, other grave yards, Idgha, Mosques etc in the subject land and pray that the defendants be prevented from causing damage to the same or removing the same or making new constructions in the said land in violation of the Act. Order dt.9.3.2018 in I.A.No.374 of 2017
26. Initially, plaintiffs had filed I.A.No.374 of 2017 under Order 39 Rules 1 and 2 C.P.C. to restrain defendant Nos.3, 4 and 6, from making any excavation, digging trenches, removal of gravel by using heavy machinery for construction activities, restraining the movement of all heavy vehicles including for allowing the public use or any all such activities including conducting marriages in violation of the Act and also to suspend the functioning or operation of the Deccan Park.
27. After contest, the said application was allowed by order dt.09.03.2018 and respondent Nos.3, 4 and 6 were restrained from making any excavation, digging trenches, removal of gravel by using heavy machinery for construction activities, restraining the movement of heavy vehicular traffic movement, including conducting of marriages except suspending functioning or operation of Deccan Park and Acqua Park.
Order dt.12.10.2018 in I.A.No.131 of 2018
28. I.A.No.131 of 2018 was filed by the plaintiffs to review the order dt.09.03.2018 in I.A.No.374 of 2017 contending that the ::10::
Tribunal had ignored the Wakf Survey Report, but the said petition was also dismissed on 12.10.2018.
C.R.P.No.48 of 2019
29. Challenging the same, the plaintiffs filed C.R.P.No.48 of 2019 before this Court, and the same is pending.
The Counter affidavit filed by 7th defendant in CRP NO.48 of 2019
30. In the said Revision, the 7th defendant filed a counter stating that certain works were undertaken by them in association with defendant Nos.3 and 4; and a third party, which was a subsidiary of the 8th defendant, filed an application for impleadment in the CRP. I.A.No.97 of 2020
31. Therefore, plaintiffs again filed I.A.No.97 of 2020 for an ad interim injunction against defendant Nos.2 to 4, 6 to 8 to restrain them from making further excavation, transportation of the soil, making/raising/developing any construction activity in the name of 'Interpretation Center' or any other structures in the schedule property in 'Deccan Park' and 'Acqua Park' within the schedule of extent of property of Ac.103.30 gts.
32. It was contended that 7th defendant violated the provisions of Sections 19 and 24 of the Act and also Rules, 8, 10 and 31 to 38.
33. Plaintiffs alleged that 7th defendant admitted that it intends to make an 'Interpretation Centre' in the area which was already ::11::
earmarked as grave yard under the illegal occupation of 3rd defendant as per the survey report; and in the name of development of the said 'Interpretation Centre', excavation was being carried out of more than 30 ft, and 6th defendant remained only as a silent spectator.
34. Reliance is also placed on a Gazette Notification dt.16.06.1992 issued by the Central Government through Department of Culture, Archeological Survey of India, New Delhi, which postulates that no construction etc., should be made within 100 meters from the outer wall of the ancient monument which comes under the protected zone, and it is alleged that on account of the construction being made by the 7th defendant, the Deccan Park which originally stood had vanished.
The Written statements of the defendants The Written statement of 4th defendant
35. Written statement and an additional written statements have been filed by 4th defendant on 27.09.2007 and 18.01.2016.
36. The 4th defendant i.e., The Archaeology and Museums, State of Telangana, in the written statement filed admitted that Qutb Shahi Tombs was declared as monuments of historical importance under the provisions sub-Section (3) of Section 4 of the Act vide G.O.Ms.No.2248 dt.18.08.1965.
37. It was stated that there was an agreement between the H.E.H. Nizam Estate and the Director, Archaeology and Museums on behalf of the Government of Andhra Pradesh on 17.08.1966 with certain ::12::
conditions, under which there was a transfer by H.E.H. the Nizam VIII, Hyderabad to the 4th defendant of historical structures like tombs, mosques etc. spread over an extent of Ac.41.20 gts under Section 6 of the said Act. It is further stated that the said Department had acquired Ac.15.37 acres in Sy.Nos.290, 293/1, 304 and 306 in Shaikpet village for development of Tombs in 1969.
38. It admitted that in a survey conducted by the Revenue Department, the Qutub Shahi Toombs are spread over an area of Ac.82.37 gts, that an extent of Ac.17.16 gts of land is under encroachment, and the Deccan Park had encroached an extent of Ac.12.27 gts of land being managed by the 4th defendant.
39. It is stated that the 4th defendant had initiated action against the 3rd defendant for its activities nearby the Qutub Shahi Tombs and Idgah sector and the matter was pending with the Government. It is stated that action was initiated by 4th defendant on 05.08.2000 and was being pursuant vigilantly.
40. It is stated that handing over of the Deccan Park land to the 4th defendant was under active consideration of the Government. It was denied that 4th defendant was not taking any steps in protecting the tombs from ware and tare.
41. In the additional written statement filed by it, it is admitted that there was a MoU between the Government of Andhra Pradesh and the 7th defendant in the year 2013 and as per the same, the 4th defendant ::13::
had every right to carry out repairs to monuments as per the provisions of the Act.
42. While admitting that it is the custodian of the monuments, the 4th defendant denied that it is not authorised to enter into any agreement with a third party.
43. It is stated that since it lacks sufficient funds and staff, the 7th respondent came forward for restoration of the tombs at their own costs under the supervision of the 4th defendant and there was no necessity for taking any permission from defendant Nos.5 and 6.
44. It is admitted that the property belongs to the private estate of HEH the Nizam as declared by the Government of India, and that HEH the Nizam VII had executed an agreement in favour of 4th defendant on 17.08.1966 and subsequently the HEH the Nizam VIII executed another agreement on 17.05.1977 in favour of the 4th defendant as custodian of entire monuments and the same were declared as protected monuments.
45. It was further denied that it was a wakf property.
The Written Statement of the 6th defendant
46. The 6th defendant Telangana State Wakf Board filed a written statement stating that it had conducted survey of both the properties through a Survey Commissioner and it was concluded that the properties are wakf properties attached to and included Idgah, Mosque, Garden and Graveyard belonging to Sunni and Shia ::14::
communities. It contended that there is no doubt about the status and character of the property as that of the Wakf. It stated that there was an encroachment by 3rd defendant and it had addressed a letter to the 3rd defendant and asked for cessation of construction but in the name of development of wakf properties, there was a systematic and meticulous encroachment by the defendants of wakf properties in the State.
47. It is further stated that the suit schedule properties were under the management of the HEH the Nizam VIII through 5th defendant. It is contended that a Mutawalli of the Wakf institution such as HEH the Nizam VIII is not entitled to delegate powers in favour of any third party without the sanction and approval of the Wakf Board.
48. It is stated that the sanctity and sacredness of the suit schedule properties including Mosques, Idgahs, Mausoleums, graveyards are being violated under the pretext of beautification and they are being defaced and defiled in spite of protest by the Wakf Board.
49. It is stated that the suit schedule property was the gazette notified property and it is under the control and administration of the Wakf Board.
50. It also stated the setting up Amusement park and Deccan park by defendant Nos.1 and 2 in consultation with 3rd defendant was bad in law and void ab initio because property is wakf property, and no amusement park or aqua can be set up as it would be against the ::15::
object of the wakf. It is also stated that defendant Nos.3 and 4 were not supposed to take the law into their hands and encroach into the wakf property by making illegal constructions and erasing the graves and graveyards because it amounts to desecration of the graveyard and Idgah area which is earmarked for prayers.
51. It categorically asserted that the District Collector or the 3rd defendant have no matter of legal right over the property and the 4th defendant was not entitled to divest the property in favour of 3rd defendant.
52. It, in fact, stated that it was unaware of the proposal of setting up of Amusement park and Deccan Park by defendant Nos.1 and 2 in consultation with 3rd defendant.
The Written Statement of the 3rd defendant
53. The 3rd defendant filed a written statement stating that it is not aware about past history of the Qutub Shahi dynasty and historical monuments and the extent of land of A.P. Wakf Board at 7 Quli Qutub Shahi tombs as per available record. It is stated that the District Collector, Hyderabad informed the 3rd defendant on 06.05.2002 that the Wakf Board interest is not involved on the park and garden area.
54. It was denied that there was any encroachment of Ac.22.00 of land as alleged by plaintiffs.
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55. It is stated that development of the property in terms of restoration with beautification will not harm the ancient historical monuments and it had protected the Government and Poramboke land.
56. It denied that it had demolished any graves, and stated that it had developed only the garden and was taking steps to preserve the archeological monuments including the graves and mosques in the Government land. It is stated that there was a recommendation of the State Level Committee to develop a recreation and amusement park and no illegal construction was carried out in open land of Idgah which is used for offering prayers during the Ramzan and Bakrid festivals.
57. It is admitted that a mini toy train and compound wall were erected after obtaining permission from the Railway consultants and they would not disturb the historical monuments or the heritage building as the said structures were located far away from the train track.
58. It is also stated that the Wakf Tribunal had no jurisdiction to try the case since Wakf Board interests were not involved and the land is Government poramboke land as per the Survey report give by the District Collector, Hyderabad.
59. It stated that it had no mala fide intention in installing machinery in park or on Government Cantonment land and no harm or loss or damage would be caused to the historic structures or ::17::
monuments and it had stopped further developmental work in the part as per the instructions of the Chief Secretary to the Government.
The Written Statement of the 7th defendant
60. The 7th respondent filed written statement that it is a principal cultural agency of Aga Khan Development Network established in 1988 in Geneva as a private philanthropic foundation to integrate and coordinate the various initiates of High Highness the Aga Khan for improvement of cultural life
61. In para-13 of the written statement, it is admitted that Ac.103.30gts of land together with structures, tombs, mosque, Idgah, gardens, graveyards etc. described in the plaint as schedule of property is a wakf property as stated in para-8 of the plaint and that as per the provisions of the Wakf Act, 1995, the Wakf Board is vested with the general superintendence of the property and is responsible for proper maintenance, control and administration of the wakf property though the Wakf Board is not a owner thereof.
62. It stated that there were discussions with defendant Nos.1, 3 and 4 and after that, it developed a plan for conservation and landscape project at the Qutub Shahi Tombs and the Deccan Park site which includes schedule of property of Ac.103.00 and entered into a MoU on 09.01.2013 with defendant Nos3 and 4.
63. It is stated that the entire project work would be carried out at the schedule of property with the funds of the 7th defendant and the ::18::
funds raised by the Aga Khan Foundation and defendant Nos.3 and 4 were not obliged to contribute funds to the Project. It is also asserted that it is not a commercial venture taken up by 7th defendant but it is purely philanthropic in nature.
64. Counter affidavits were also filed in IA No.97 of 2020 and they will be discussed at the appropriate juncture while considering the CRPs.
Order passed by the Telangana State Waqf Tribunal in I.A.No.97 of 2020
65. The Tribunal noted that in the written statement of defendant Nos.6 and 7 they admitted that the entire extent of Ac.103.30 gts which is the suit schedule property is a waqf property, and observed that once it is so, nobody can claim ownership over the said property except Allah (God), but whether the property is a waqf property or not and whether there are protected monuments etc., in the entire extent of suit schedule property will be decided after full fledged trial and not at the stage of deciding I.A.No.97 of 2020.
66. It took note of the statement in the counter-affidavit of 4th defendant that Quli Qutub Shahi Tombs monuments were declared as 'protected monument' under G.O.Ms.No.2248 (Education Department) dt.18.08.1965, and observed that when the entire area of Ac.103.30 gts is claimed as waqf property by plaintiffs and also admitted by defendant Nos.6 and 7, at this stage no activity which is against the intention of the Waqif can be permitted till the lis is ::19::
disposed of. It also observed that by mere declaration as the protected monuments, the Government does not become its owner unless it is acquired and so there is prima facie case in favour of the plaintiffs.
67. It then considered the aspect of balance of convenience, and noted Ex.P-16 agreement dt.17.08.1966 between the Nizam VIII and the 4th defendant, recorded that the Government is only custodian of the monument and that it would not be used in any other purpose inconsistent with its character and the Government would not destroy, remove, alter, deface, misuse or otherwise imperil the said monument.
68. It observed that 'protected area' was not declared, but under Rule 8(a) of the Rules framed under the Act, person shall, within a protected part of the monument, do any act which causes or is likely to cause damage of injury to any part of the monument and when huge structure in the name of Interpretation Centre comes, there is every likelihood of damage to the protected monument.
69. It then referred to Ex.P-17 letter dt.14.07.2006 from the Survey Commissioner of Waqfs, A.P., Hyderabad to defendant No.6 recording that Ac.56.26 gts was notified as protected monuments, that it is under the control of Archaeology Department and an area of Ac.22.00 gts has been found under the control of the 3rd defendant as Deccan Park on the waqf land which was encroached by them, and concluded that even the entire Deccan park is encroached land which is waqf property.
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70. It then referred to certain maps Exs.P-18, P-19 and P-22 which is a copy of the statement of endowment showing that there are tombs in the property shown in it and it was registered in the Endowments Register according to Waqfs Act, 1954.
71. It relied on Ex.R-1, attested copy of the compliance report submitted to the Chief Secretary of the Government of Andhra Pradesh that Qutub Shahi Tombs have spread in an extent of Ac.82.37 gts and the Deccan Park has encroached an extent of Ac.12.27 gts of archaeological land and held that without deciding the dispute in the suit, it is not proper to allow any construction and Interpretation Centre in the Deccan Park.
72. It also took note of the statement in Ex.R-2 draft minutes of the meeting held at the Qutub Shahi Tombs, Golconda, Hyderabad on 14.02.2007 headed by the Chief Secretary, Government of Andhra Pradesh that no further construction was to be executed or taken up in the Deccan Park. It then held that in Ex.R-4 MoU dt.09-01-2013 between defendant Nos.3, 4 and 7 in respect of the waqf in the Deccan Park, there is no mention as to how permission accorded to defendant No.7 and by whom, and so balance of convenience is in favour of the plaintiffs.
73. It then considered several judgments cited by both sides and observed that the purpose of I.A.No.97 of 2020 was to safeguard the ::21::
disputed property and also the interests of both parties till disposal of the suit.
74. It observed that injury complained of by plaintiffs cannot be compensated in terms of money, and so granted interim injunction restraining defendant NOs.3, 4, 6 to 8 from further excavation, transportation of the soil, making/raising/developing any construction in the name of Interpretation Centre or any other structures in Deccan Park and Acqua Park in suit schedule property till disposal of the suit. C.R.P.No.278 of 2021 and C.R.P.No.174 of 2021
75. Challenging this order, defendant Nos.1, 3, 4 and 8 filed C.R.P.No.278 of 2021 and defendant Nos.7th defendant filed C.R.P.No.174 of 2021.
76. The contentions of the parties will be considered as under. The consideration by the Court :
77. From the facts on record, it is apparent that the H.E.H. The Nizam VII who was the Muthawali of the Qutub Shahi Tombs had entered into Ex.P.16 - Agreement dt.17.08.1966 with the Director of Archaeology and Museums, Government of Andhra Pradesh to place the same under the Guardianship of the Director of Archaeology and Museum.
78. Under the said Agreement, the Director was to be the custodian of the monument and is prohibited from destroying, removing, altering, defacing, misusing or otherwise imperiling the ::22::
said monument [Clause 1(c)]. The said agreement also prohibited use of the monument for any other purpose inconsistent with its character [Clause 1(e)]. The area mentioned in the agreement is an area of Acs.41.20 gts. with a map enclosed.
79. Thereafter, there was another agreement dt.18.08.1977 between H.E.H. The Nizam VIII and the Government of Andhra Pradesh reiterating the above agreement and the said agreement was deemed to have come into effect from 17.08.1966.
80. It appears that the Quli Qutub Shah Urban Development Authority (3rd defendant) made a park by name, 'Deccan Park', in 22 acres and had even put up a train track for a Toy Train and other amenities which the 6th defendant and the plaintiffs assert as having been located in the notified Wakf land.
81. The principal contention of the respondent nos.1 to 7 / plaintiffs in the suit is that the entire suit schedule property of Acs.103.30 gts. is Wakf property, and that in this property the 7th defendant is being allowed by the other defendants to put up an Interpretation Centre and other structures by making excavations in area which is protected area as per the Telangana Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1960 ( for short 'the Act').
82. The petitioners in CRP.No.278 of 2021 and CRP NO. 174 of 2021/ defendant nos.1, 3, 4,7 and 8 vehemently deny that the subject ::23::
property is Wakf property or that any excavation is being done in the Archeological sites where the Qutub Shahi Tombs are located.
83. Certain Gazette Notifications published in the Andhra Pradesh Gazette being Exs.P.1 to P.15 on 01.07.1982 have been marked by the plaintiffs in support of their plea that several portions of the suit schedule property were notified as Wakf properties under the Wakf Act, 1954, but the Special Government Pleader attached to the Office of the Advocate-General contended that the extents covered by these notifications are small and the entire area cannot be said to be Wakf property.
84. Ex.P.3 is a notification mentioning two graves of area 989.3 sq.yds. and states that the Wakf is an uninhabited mosque graveyard in the middle of premises of Tomb of Qutub Shahi near Tomb of Abdullah Qutub Shah and the purpose of the Wakf is offering of prayers (namaz and burial). The H.E.H. The Nizam is indicated as the Muthawali. In almost all the notifications, there is mention of tombs, mosques, graveyards and the purpose is shown as prayer and burial. Some maps are also enclosed thereto.
85. No doubt, the localization of the areas covered by these notifications would determine their location and also whether they are located within the suit schedule property of Acs.103.30 gts and this may have to be done in the suit.
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86. But, the 6th defendant which is the Telangana Wakf Board supports the stand of plaintiffs.
87. Even the petitioner in CRP.No.174 of 2021 / 7th defendant admits this fact in para no.13 of its Written Statement in the suit, though in the counter affidavit filed in IA No.97 of 2020, at para 5 that the entire extent of Ac.103.30 gts is not Wakf property, thus contradicting the plea in it's written statement.
88. In it's counter filed in IA No.97 of 2020, the 7th defendant stated that as per the agreement dt.16.5.1977, actually the seven tombs and other monuments covered an extent of only Ac.41.20 gts.
It also stated that the Wakf Board has no interest as per a Letter Dt.6-5-2002 of the District Collector, Hyderabad, structures such as toy train and train track in the Deccan Park have been dismantled and removed, that there is no proposal for having any amusement park, but an Interpretation Centre is being set up which enables visitors to have a complete and correct understanding of the historical and cultural significance of the Qutub Shahi Tombs.
It is its pleading that the said Interpretation Centre is not coming up in the part of the 7 Tombs Complex but it is being put up in subsequently acquired adjacent property forming part of Deccan Park Complex.
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Conservation works are being done from its own funds and co- funding by various agencies but landscape works are being carried under Central Government grant.
But it is admitted in para-25 that the excavation of the Interpretation Centre is 20 ft deep and the site is in the Deccan Park which is a separate property. It is stated that its design is such that there will be no damage to any archaeological structure by maintaining distance from the principal monuments.
89. The question arises whether the activity being carried on by the 7th defendant is within this Acs.103.3 gts. or not. These are undoubtedly matters for trial.
90. But an Advocate Commissioner had been appointed in this suit and he had filed a report dt.17.9.2012.In this report he noted the following:
" 1. While entering towards the Tomb I could see a tractor with shovel is in action near the tomb. I had enquired with person who is In-charge at the site, he informed me that he la M.M. Aleem, Superintendent and he is at work as directed to him by the Deputy Director, I asked whether he has any specific direction to use tractor with attached shove. He said that he is not aware of such direction, I had asked the videographer to take videograph of the entire stretch including the work in progress and ground images where it is seen that heavy vehicles were plied as per the Impression available thereat though at that no vehicle was present at that stretch. I had asked the veideographer to take the coverage of another stretch till the next tomb. This fact is visible in the videograph. After completion of this stretches the petitioners who were present ::26::
with me had requested that I may be first visit the site where heavy machinery in deployed as they overheard that one of the contractor was saying to stop the work.
2. I immediately visited the other end of the suit schedule property much inside where the last tombs were present. I could see two heavy JCB machines were deployed and they were shoveling the surface of the ground irregularly at some places more than a feet and some places superficially. At this juncture, the counsel for the petitioner had pointed out to me that the Blades of the shovels are not plane blade but they were projected sharp pointed needless and it was brought to me notice that this type of shovels are used to excavation and not used for leveling the surface of the ground. This fact is shown in the photographs bearing No.12042, 12043, 12045 and 12049.
3. Since the entire ground at this point was very damp with small grass weeds, the surface of the ground can be seen with movement of heavy vehicle along with impression of the huge tires of the JCB vehicle itself. These two JCB vehicles were being used very close to the Tombs as evident from the photographs bearing No.12050 to 12055, and also videographs. I notice there was no supervisor to guide the drivers of JCBs to show where and how to use the shovels. I enquire the drivers whether they have any instructions for using, they informed they were asked to remove the grass and level the ground and they have been work at different areas within suit schedule property with similar instructions for the last four days. I had also notice the drivers are very young boys with average age of 21 to 24 years, with absolutely no experience to drive their respective vehicles in the monument area. The videographs of these drivers is visible which is very clear to assess that they are not expert in excavating or shovelling. The photograph bearing No.12042 to 12055 shows the above facts more particularly the photos12051 to 12055 shows the work which is very close at the distance of 10 feet from the tombs. This is seen at all the tombs which is evident from the impression of the tyres and the methods that being used by using the vehicles negligently.
4. I was requested by the counsel for the petitioner to make note of the slabs which are laid around few of the tombs, though it ::27::
was not specified in the warrant. Taking into consideration of the request of the counsel and reasons explained to me, I thought it would also help the Hon'ble Court to arrive to correct conclusion. I had asked the photographer and videographer to take the photos which is bearing No.12057 to 12060. The counsel and the petitioner have explained to me that from the above photos 12057 to 12060 one can notice a mark on the third red slab from the top which shows that soil was covered upto the mark which was removed earlier by using the same JCB for laying down the white stone slab which is almost feet and above al throughout the tomb. Since I am not a technical person, I don't know the name of the white stone. To my knowledge it looks like white ordinary slab. This white stone slab ending on the soil without any water channel as specify to me by the counsel for the petitioner and requested to note of this. This fact I note wherever this white stone slab is laid which is prominent in photos bearing No.0102, 0105 and 0122. In these photos I can see there are no water channels or small nalas to flow of rain water drain from tombs to platform and then to this white slab floor. I was also requested to make note of the colour of the platform slabs which is red in colour and the ground floor white slab and there is lot of different between the two stones as can be seen from the photos.
5. That as for the excavation is concerned, the petitioner had taken me to the main tomb seems to be biggest among all. This tomb does not have any white slab in around it. This tomb was excavated all around to an extent of more than 3, 4 and upto 5 feet around it. If the photograph Nos.12061, 12067 and 12067 which fall on eastern side of the tomb which was dug upto 4 feet in between the outer wall and the main tomb and we can see the water between the outer wall and the platform of the tomb is something serious as the water was there since it was rained few days ago. I cannot assess how much water was there standing when it was rained and I cannot also show the point of seepage on either side i.e., outer wall and also in the basement of the tomb. This had to be urgently rectified as I feel dangerous since water which stands in the path or in the trench there is no other way for the water to go out. As the entire basement of the ::28::
platform of the tomb was having trenches of 3 to 5 feet on three sides and western side is covered with debris.
6. That the Photo Nos.0016, 00170, 0026, 0027, 0030, 0034, 0038 and 0039 is nursery of plants, adjacent to the mosque. The Photos No.0019 and 0022 shows the construction equipments like Gamppaas is kept in the Mosque. There is another mosque on the western side of the big tomb wherein the construction material and equipment are stored as shown in the Photos No.0080 and 82.
7. I had also noticed that during the use of JCB vehicles, electric poles were up-rooted as shown in the photo No.0080, 0044, 0030, 0123, 0124 and 0126. I further noticed that the labourers are being paid by Humaiah, Anji Reddy, Ranga Swamy to the labourers.
8. I could also see the demolished structures within the vicinity and inside the museum as shown in the photos 0045, 0049, 0051, 0053, 0058, 0057, 0059, 0060, 0067, 0083 to 0085, 0087, 0136 to 0138. These photographs also demolition of the steps platform of one of the tombs. When it was demolished cannot say but the photos and videographs the status of the structure within the suit properties. There are several such unattended work is pending within the suit property which I decline to look into.
9. The most important that adjacent to the nursery, there is an office of the believed to be the office of the respondent No.4. At the juncture when I was making note of the nursery, the petitioner had informed about a group of persons standing at this place are the officials of respondent No.4. Though they have seen me and others while inspecting the big tomb, none is bother to come and enquire as what I am recording. Even when I was going into the nursery where there is board 'No Admission', I went inside, no body had questioned about me as they were standing right in front of the nursery. I and the counsel for petitioner enquired and introduce himself and also introduced me. I had noted their names RAHEEM SHAH ALI who is Deputy Director of respondent No.4 and another responsible person by name Dr.B.Subramanyam of the respondent No.4, and there was another person does not want get identified himself. At distance of 15 to 20 there was another group of people who ::29::
also do not want identify themselves. Later I was given to understand they sub-contractors. I enquired with Deputy Director under whose instruction he was working, he informed that he himself is executing the work under the instruction Director of respondent No.4. I asked whether he had any authorisation to do the work and any technical committee instruction. The Deputy Director had all the documents were with the Director. At the site office do not have any record and expert instruction with him for execution of work. The counsel for the petitioner had demanded him that he should possess with all the records and in the absence he cannot do the work. This apart of friendly arguments can be seen in the videography. These officials wanted accompany me but he did not come more than 25 feet up to the museum. Thereafter he did not followed. I proceed with execution of the warrant, in view of he short of time as I wanted close the commission between 5.15 to 5.30 p.m.
10. That, after visiting the other tombs as shown in the videograph, I want to conclude the commission, though the petitioners wanted to show said property in the suit schedule property. I refuse to do so, and even the counsel for the petitioner said that the nature of dispute is different it is not necessary at this juncture to go into that aspect and requested that he will take leave of the court he can visit again in respect of the said property which covers Idgah and grave yards, garden and Deccan park and other alleged encroachment by third parties in the suit schedule property.
I conducted commission at 5.35 p.m. I herewith returning the original commission warrant with docket order and proceedings sheet dated 13.09.2012 and original DVD containing the videography and images which was taken during course of commission work for kind perusal of this Hon'ble Court."
91. The contents of this report prima-facie show that excavation work is being done at that time by employing tractors, JCB and labour.
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92. It is an admitted that the Union of India had declared that the Qutub Shahi tombs at Golconda, Hyderabad District had ceased to be monuments of national importance.
93. But the then Government of Andhra Pradesh had issued G.O.Ms.No.2248 Education dt.18.08.1965 stating that it is of the opinion that the said monuments require protection under the A.P. Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1960 after issuing a preliminary notification inviting objections on 20.04.1965 and after noticing that there were no objections to the said proposal. This notification was published in the Gazette on 09.09.1965. The said notification has been placed on record by the Special Government Pleader appearing for the Office of the Advocate-General.
94. In the said statute Section 2(d) defines the term 'Archaeological site and remains' as an area which contains or is reasonably believed to contain ruins or relics of historical or archaeological importance which have been in existence for not less than 75 years and includes
(i) such portion of land adjoining the area as may be required for fencing or covering or otherwise preserving it, and (ii) the means of access to, and convenient inspection of the area.
95. Section 2(j) defines the term 'protected area' as any archaeological site and remains which is declared to be a protected area by or under the said Act.
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96. Rule 2(g) of the Rules framed under the Act define the term 'prohibited area' or 'regulated area' as an area near or adjoining a protected monument which the Government has, by notification in the A.P. Gazette, declared to be a prohibited area or, as the case may be, a regulated area, for the purpose of mining operation or construction or both.
97. Rules 28 and 29 of the Rules state as under:
"28. Notice of Intention to Declare Prohibited or Regulated Area (1) Before declaring an area near or adjoining a protected monument to be a prohibited area or a regulated area for purposes of mining operation or construction or both, the Government shall, by notification in the Andhra Pradesh Gazette, give one month's notice of its intention to do so; and a copy of such notification shall be affixed in a conspicuous place near the area; and (2) Every such notification shall specify the limits of the area which is to be so declared and shall also call for objections, if any, from interested persons.
29. Declaration of Prohibited or Regulated Area After the expiry of one month from the date of the notification under rule 28 and after considering the objections, if any, received within the said period, the Government may declare by notification in the Official Gazette, the area specified in the notification under rule 28, or any part of such area, to be a prohibited area or, as the case may be, a regulated area for purposes of mining operation or construction or both."
98. There is no material placed before me by the defendants that any steps under these Rules have been initiated to notify a "prohibited area' or 'regulated area'.
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99. The learned Special Government Pleader appearing for the learned Advocate General admitted that no notification has been issued specifying the 'prohibited area' or mentioning what portion of land adjoining an 'archaeological site and remains' would fall in the same category under Section 2(d) of the Act.
100. Without notifying how much area near an ancient archaeological site and remains is prohibited area, how much is protected area and how much is regulated area, it is not known prima facie how any activity such as excavation or conservation or construction can be permitted or prohibited as per the provisions of the Act.
101. I am of the opinion that the respondents cannot take advantage of the absence of specification of these areas and contend that what they are doing is a permitted activity and not a prohibited activity prima facie.
102. Under Section 5 of the Act, the Director of Archaeology is permitted with the sanction of the Government to purchase or take a lease of / or accept a gift or bequest any protected monument.
103. Under Section 6 of the Act, the Director, when so directed by the Government, shall propose to the owner of a protected monument to enter into an agreement with the Government for the maintenance of the monument.
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104. The agreements Ex.P-16 dt.18.08.1966 and 18.08.1977 are admittedly entered into between HEH the Nizam VIII and the 4th defendant under these provisions.
105. The Survey Commissioner of Wakfs, Andhra Pradesh addressed Ex.P.17 letter dt.14.07.2006 to the then A.P. State Wakf Board stating that the Assistant Survey Commissioner of Wakfs, Hyderabad had conducted a detailed enquiry and spot inspection of the Eidgah Qutub Shahi with open land, Qutub Shahi Tombs, Chaman, Wells, one Pucca House, Mosque, situated at Golconda, Hyderabad and submitted an enquiry report.
According to him, the said Assistant Survey Commissioner of Wakfs stated that the wakf land is covered in the Muntakab No.40 dt.16.08.1956, that the total area taken out from the boundaries shown in the Muntakab is Acs.103.30 gts., that the said enquiry was conducted keeping in view the sketch of the Umer-e-Mazabi provided by the Wakf Board, and it was found that an area of Acs.56.26 gts. notified as protected monuments is under the control of the Archaeology Department and an area of Acs.22.00 has been found under the control of the Quli Qutub Shah Urban Development Authority (3rd defendant) which has made the 'Deccan Park' on the Wakf land which is encroached by them. He also stated that the remaining Acs.47.04 gts. has a Shia Graveyard in Acs.2.23 gts., Idgah, Wells, Dargah and open place is of Acs.20.00 and land encroached by houses is Acs.2.21 gts.
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He alleged that the land occupied by the 3rd defendant belongs to the Wakf and its occupation is unauthorized; after verification it was found that no permission of the Wakf Board or from the Archaeology Department was taken by the 3rd defendant and they had forcibly taken over 22 acres for 'Deccan Park'.
He also stated that the Andhra Pradesh Gazette Supplement to Part II No.26C dt.01.07.1982 reveals only 4201.20 sq.yds. of land is shown as Idgah Qila Golkonda, Chaman and Bowli which is incorrect as per spot verification and the extent of Idgah with open land is 20 acres. Copy of the Munthakab and a plan was enclosed to the said report.
106. A meeting was held on 14.02.2007 by the then Chief Secretary to the Government of Andhra Pradesh, Director of Archaeology and Museums and other officials whose Minutes Ex.R.2 indicate that he had inspected inter alia a boundary wall constructed by the 3rd defendant within the archaeological area, and archaeological monument within the 'Deccan Park' occupied by the 3rd defendant. The Minutes reveal the Chief Secretary had directed the 3rd defendant that no further constructions would be executed or taken up in the 'Deccan Park'.
107. There was also a Technical Committee consisting of the Director of the Archaeology and Museums, two retired Engineers-in- Chief, Superintending Archaeologist of the A.S.I., Hyderabad and ::35::
Member, INTACH, A.P. Chapter, Hyderabad constituted by the then State of Andhra Pradesh which had a meeting in the premises of the Quli Qutub Shahi tombs, Golkonda, Hyderabad on 31.07.2008 for studying work estimates for certain conservation and restoration works to the said tombs with Central Financial Assistance Funds.
The Minutes indicate that they recommended for 16 feet width granite slab flooring around the platforms of tombs and also putting granite on the floor to avoid slipping by visitors around the graves, and in particular, to the tomb of Mohd. Qutub Shah.
108. An M.O.U. dt.09.01.2013 (Ex.R.4) was entered into by respondent nos.3 and 4 with the 7th respondent for preservation, presentation and provision of Tourist infrastructure for the Quli Qutub Shahi Tomb complex and the Deccan Park and to do all necessary acts for development of the project area for doing conservation works, landscape works, etc.
109. The above MOU was extended by another MOU dt.06.12.2017 which extended it up to 08.01.2023 for implementing a major Conservation and Landscape Restoration Project allegedly at two segregated but adjacent sites of the Qutub Shahi Tombs and Deccan Park, collectively called Qutub Shahi Heritage Park for a period of 5 years from 08.01.2013 to 09.01.2018.
Under this MOU, conservation of 75 structures standing within the Qutub Shahi Heritage Park, landscape restoration of the core ::36::
archaeological zone, and clearance of growth etc. It also contemplated utilization of funds received from Swadesh Darshan Grant of the Ministry of Tourism of Government of India.
110. Just prior thereto, approximately Rs.100 crores was said to have been released by the Government of India, Ministry of Tourism for the development of a Heritage Circuit including the Qutub Shahi Heritage Park and Paigah Tombs and other monuments. Clause (3) of the proceedings in File No.5-(35) / 2016 - SD dt.27.06.2017 containing these details specifically states that the State Government of Telangana shall make land for the project available free of cost; and no portion of the sanctioned project should be executed / implemented on land / property owned by private individual or Trust.
111. Counsel for plaintiffs contends that the State Government had released funds obtained from the Central Financial Assistance vide Memo No.104/T& PMU / 2017 dt.31.03.2018 to the tune of Rs.27.75 crores to the 7th respondent, but curiously it is the stand of the 7th respondent in the Written Statement filed by it at para no.18 that defendant nos.3 and 4 are not obliged to contribute funds for this project, that it is not a commercial venture taken up by the 7th defendant and is purely philanthropic in nature.
112. He also contends that the Department of Archaeology is only a custodian of the Qutub Shahi Tombs and is in the nature of a Guardian as per the terms of the agreements dt.17.08.1966 (Ex.P.16), ::37::
and also the agreement dt.18.08.1977, that even H.E.H. The Nizam VIII who executed them in favour of the 4th defendant is only a Muthawali, that the said agreements prohibit the Government from destroying, removing, altering, defacing, misusing or otherwise imperiling the Qutub Shahi Tombs or using the monuments for any other purpose inconsistent with its character, and if so, the 7th defendant cannot be allowed to do any activities of excavation or construction under the guise of conservation / preservation of the tombs. According to him, such acts are punishable offences under Section 30 of the Act.
113. He also relies on Section 16(1) of the Act which prohibits use of a protected monument maintained by the Government under the Act, which is a place of worship or shrine from being used for any purpose inconsistent with its character; and on Section 19(1) which prohibits even owner or occupier of a protected area from constructing any building within the protected area or carrying on excavation without the permission of the Government; and on Section 24, even officers of the archaeological department cannot allow such excavation without the approval of the Government in area which is not protected area.
114. According to him, within the archaeological site of the Qutub Shahi Tombs, the 7th respondent is doing excavation works and the other respondents are turning a blind eye to it and are allowing the graveyard, mosque, Idgah, prayer area to be used for purposes other ::38::
than for worship by constructing an Interpretation Centre and other structures.
115. I find considerable force in the said submissions.
116. When the property is alleged to be Wakf property of which the owner is said to be Allah (God), and even H.E.H. The Nizam VIII is only a Muthawali, merely because he allowed the Archaeology Department to have custody / guardianship of the same with specific clauses prohibiting use for other purposes inconsistent with its character, the defendants cannot primafacie destroy, remove, alter or otherwise imperil the monuments, the defendant nos.1 to 6 cannot behave as if they are the owners of the same and act as if they are free to do what they please in the property ignoring the above agreements and the provisions of the Act, and act in violation of the provisions of the Act.
117. It is not in dispute that the Tribunal passed an order on 22.01.2013 in I.A.No.322 of 2010 in O.S.No.26 of 2007 restraining the defendants from changing the nature of the schedule property (land with structures of 7 tombs, mosque, Eidgah, gardens and graveyards compromising Ac.103.30 gts in Block 1 of Ward 8 situated at Golconda Fort, Shaikpet village, Hyderabad District).
118. Thereafter the 7th defendant filed I.A.No.640 of 2013 to modify the said order.
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119. On 17.05.2013, a docket order was passed by the Tribunal recording the statement of G.V.Ramakrishna Rao, said to be Full Additional Charge of the post of Director Archaeology Department that the suit schedule mentioned monuments have not been handed over to the 7th defendant though an MoU has been signed with it. Taking note of this, the Tribunal only permitted the 4th defendant to attend to certain restoration works as per the provisions of the Act.
120. In 2017, the plaintiffs had filed I.A.No.374 of 2017 under Order 39 Rule 1 and 2 C.P.C. for grant of interim injunction restraining the defendant Nos.3, 4 and 6 from making any excavation, digging trenches, removal of gravel by using heavy machinery for construction activities, restricting the heavy vehicular movement, including conducting of marriages and also suspending the functioning or operation of the Deccan Park.
121. On 09.03.2018, I.A.No.374 of 2017 was partly allowed granting interim injunction restraining the defendant Nos.3, 4 and 6 from making any excavation, digging trenches, removal of gravel by using heavy machinery for construction activities, restricting the heavy vehicular movement, including conducting of marriages. But the Tribunal did not suspend the functioning or operation of the Deccan Park Aqua park.
122. When the said interim order is subsisting, it is not known how excavation for Interpretation Centre upto 20 feet deep ( as was ::40::
admitted in the counter affidavit filed by 7th defendant in the IA No.97 of 2020) is being carried on in what is alleged to be the Deccan Park. According to the plaintiffs, the excavation is currently being done by 7th defendant in the archaeological site where the tombs are located violating the said order and also the provisions of the Act by taking advantage of absence of Notification under the Act demarcating the area of the archaeological site and remains and the prohibited area.
123. Though the learned Special Government Pleader appearing for defendant Nos.1, 3, 4 and 8/petitioners in C.R.P.No.278 of 2021 and Sri Shafiq Mahajir, learned counsel for defendant No.7/petitioner in C.R.P.No,.174 of 2021 strenuously contended that the activity being done by the 7th defendant including excavation is not in way violative of the provisions of the Act or the interim order, for the aforesaid reasons, I am not inclined to accept the said submission particularly because it is not their case that the area where the tombs are located has been acquired by the State and title vests in it. Admittedly, the 4th defendant is only a custodian and the HEH the Nizam VIII is only a Mutawalli of the property which the plaintiffs and 6th defendant contend to be wakf property.
124. As rightly held by the Tribunal, 'protected area' not having been declared there is every likelihood, if a huge structure such as the 'Interpretation Centre' comes up, of damage to the protected monument, more so when there is a dispute as to whether the entire of Ac.103.30 gts is wakf property. At this point of time, Ex.P-17 letter ::41::
dt.14.07.2006 from the Survey Commissioner of Wakf, Andhra Pradesh, Hyderabad to the 6th defendant stating that Deccan Park is on wakf land which was encroached by the 3rd defendant cannot be lightly brushed aside and prima facie supports the claim of the plaintiffs.
125. The Tribunal had also relied on (i) Ex.R-1 compliance report submitted to the then Chief Secretary of the State of Andhra Pradesh which mentioned that the Qutub Shahi tombs are spread in an area of Ac.87.30 gts and that the Deccan Park had encroached Ac.12.27 gts of archaeological land and (ii) Ex.R-2, the draft minutes of the meeting held on 14.02.2007 by the then Chief Secretary to the Government of Andhra Pradesh that no further construction was to be executed or taken up in the Deccan Park. These documents show that such activity cannot be taken up in the Deccan Park area also which is an encroachment of the archaeological land prima facie.
126. The contention of the defendants that since one of the plaintiffs died, the suit abated is an aspect to be gone into in the main suit. But since the plaintiffs claim to be all 'interested persons' under Section 2(k) of the Wakf Act, 1995, death of one of the plaintiffs does not prima facie result in abatement of the suit.
127. Merely because certain funds have been taken by 7th defendant from the Central Government and there is a possibility of the said funding lapsing, the defendants cannot plead that they should be ::42::
allowed to proceed with further excavation or construction of Interpretation Park because it may be difficult to restore status quo ante in future and the injury which might then be caused to the plaintiffs would not be compensatable in terms of money.
128. In the light of the above prima facie findings, I do not find any error of jurisdiction in the order dt.08.01.2021 passed by the Telangana State Wakf Tribunal in I.A.No.97 of 2020 in O.S.No.99 of 2016 warranting interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. I also hold that the findings of the Tribunal are based on appreciation of evidence on record and cannot be said to be perverse prima facie.
129. However, the Tribunal shall decide the suit uninfluenced by observations made by it in the impugned order or by the order by this Court in these Revisions.
130. Accordingly, both Revisions are dismissed. No costs.
131. Consequently, miscellaneous petitions, pending if any, shall stand closed.
____________________________ M.S. RAMACHANDRA RAO, J Date: 26 -08-2021 Vsv