THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.1074 OF 2018
ORDER
In this Writ Petition, the petitioners are seeking a Writ of Mandamus declaring the action of respondent No.3 in issuing G.O.Rt.No.270 dt.22.11.2017 sanctioning the amount of Rs.20.00 crores for construction of a High School, a Junior College, a Women Empowerment Centre with a total built up area of 96,840 square feet in the Wakf Institution on 6,000 square yards of land situated at Raisathnagar, near old Santosh Nagar Police Station, Opposite Owaisi Hospital, Hyderabad encircling the petitioners' land admeasuring 3,240 square yards, as illegal, arbitrary and in violation of principles of natural justice and consequently to direct the respondents to set aside G.O.Rt.No.270 dt.22.11.2017 and not to make any construction in the petitioners' land and to pass such other order or orders as this Court may deem fit and proper in the circumstances of the case.
2. Learned counsel for the petitioners, Sri V. Venkata Mayur, submitted that the petitioners are the legal heirs of one Dwaraka Bai who has bequeathed the subject property to the petitioners through a W.P.No.1074 of 2018 2 registered Will deed bearing Document No.1 of 1975 dt.17.03.1975. It is submitted that the petitioners are in continuous possession of the same since then. In the meantime, respondent No.3 issued G.O.Rt.No.270, Minorities Welfare (Estt.I) Department, dt.22.11.2017 sanctioning an amount of Rs.20.00 crores for construction of the proposed High School, Junior College and Women Empowerment Centre in the 6,000 square yards on the ground that it is the premises of Wakf land at Dargah Hazzarath Syed Khaja Hasan Barhana Shah Saheb Qibla (Rh.) at Riyasathnagar, Hyderabad. Alleging that the land on which the proposed building is to be constructed belongs to the petitioners and that the respondents have no authority to pass such a G.O. to enter and construct a building over the private land of the petitioners, the present Writ Petition was filed.
3. By orders dt.02.11.2020, this Court directed status quo to be maintained and subsequently vide orders dt.17.08.2021, the said order of status quo was vacated by observing that after passing of the status quo order dt.02.11.2020, the respondents have started constructing a building and the second floor of the building is almost completed. Observing thus, the status quo order was vacated and it was observed that any W.P.No.1074 of 2018 3 construction already made shall be subject to the result of this Writ Petition. Challenging the same, the writ petitioners have filed a Writ Appeal in W.A.No.486 of 2021. In the Writ Appeal before a Division Bench, respondent No.6 had stated that they have stopped all the construction activities and they shall not be carrying out any construction activity till the matter is decided finally by the learned Single Judge. Taking the same into consideration, the Division Bench has set aside the order of the Single Judge and requested the Single Judge to decide the matter finally at an early date, preferably within a period of three (3) months from the date of the order. Thus, the matter has been placed before this Court for final disposal.
4. The learned counsel for the petitioners submitted that the property was purchased by the legatee from one Mr. Ansari by way of an unregistered agreement of sale and the legatee was put in possession of the property and thereafter, by way of a registered Will deed, the petitioners were bequeathed with the property. It is submitted that the petitioners have also filed Declarations before the Unban Land Ceiling authorities and have obtained ULC Certificates in their favour.
W.P.No.1074 of 2018 4 According to the learned counsel for the petitioners, the petitioners, have thus, proved their possession over the property.
5. The learned counsel for the petitioners further submitted that the Wakf Board has not filed any document to demonstrate that the subject land is the property of the Wakf Board and therefore, they have no authority to enter into and make any construction over the land of the petitioners, and referred to A.P. Gazette Notification dt.16.05.1985, under which in Serial Number--1957, the property of the Wakf has been declared as Mosque Kandika Bagda, outside Lal Darwaza with graveyard, 18-1-56 Area: 498.7 Sq. Yds. and therefore, according to him, the Wakf does not have any right over the property except to the extent of 498.7 square yards near the mosque. According to the learned counsel for the petitioners, since the property belongs to the petitioners, the respondents could not have issued G.O.Rt.No.270 without first acquiring the land of the petitioners and they should have followed the due process of law before making any construction in the property of the petitioners. Therefore, according to him, issuance of G.O.Rt.No.270 without having any right over the property is illegal and arbitrary.
W.P.No.1074 of 2018 5
6. Sri Abu Akram, learned Standing Counsel representing respondents 3 to 5, i.e., Wakf Board, submitted that the entire Survey No.54 of Kandikal Village, i.e., an extent of 140.19 acres of land belongs to the Wakf Board as it was by way of Crown Grant and the same is recorded in the Khasra Pahani, a copy of which is placed at page No.41 of the papers filed along with the counter affidavit filed by respondent No.5. He further submitted that the Government of Andhra Pradesh, as it then was, proposed to construct a High School, a Junior College and an Empowerment Centre for women on the land of the respondent Wakf Board at the request of the Wakf Board and therefore, there was a sanction of Rs.20.00 crores for construction of the same by way of G.O.Rt.No.270 dt.22.11.2017. It is submitted that the petitioners have not proved their title or possession over the subject land and have come to the Court and obtained ex parte interim stay, due to which the construction has been stopped. He further submitted that the petitioners ought to have approached civil Court for declaration of title or proving their possession, if they were the owners and possessors of the subject land, but instead, they have invoked the jurisdiction of this Court under Article 226 of the Constitution of India as there is no violation of any W.P.No.1074 of 2018 6 legal provision of law. Therefore, he prayed for dismissal of the Writ Petition.
7. Sri A. Yadava Reddy, learned Standing Counsel for respondent No.6 supported the contentions of respondents 3 to 5 and submitted that the Government of Telangana has accorded administrative sanction for construction of a High School, a Junior College and a Women Empowerment Centre in the premises of Wakf land at Darga Hazzarath Syed Khaja Hasan Brahana Shah Saheb Qibla (Rh.) at Riyasatnagar, Hyderabad with an estimate cost of Rs.20.00 crores and it is an authority only to execute the construction and as per the directions of this Court, it has stopped the work and status quo as on the date of the High Court order is being maintained.
8. The learned Standing Counsel for respondents 3 to 5 has placed reliance upon the following judgments in support of his contention that where the issues involved in a litigation are of facts and not law, the concerned parties have to approach the civil Court and in such cases, the High Court cannot interfere under Article 226 of the Constitution.
W.P.No.1074 of 2018 7 (1) Joshi Technologies International Inc. Vs. Union of India and others1.
(2) Union of India and others Vs. S.M. Hussain Rasheed and others2.
(3) M.S.N. Raju and others Vs. Mandal Revenue Officer, Jami Mandal, Vizianagaram and others3.
9. Having regard to the rival contentions and the material on record, this Court finds that the petitioners as well as the Wakf Board are claiming the subject land to be belonging to them. The petitioners are relying upon an unregistered agreement of sale and ULC proceedings, while the Wakf Board is relying upon a Khasra Pahani of the relevant survey number to claim it to be their land. Therefore, it is clearly a question of fact which can only be decided by a civil Court after examining the evidence and also the relevant parties.
10. The Hon'ble Supreme Court in the case of Joshi Technologies International Inc. Vs. Union of India and others (1 supra) has held 1 (2015) 7 SCC 728 2 2003 (5) ALD 150 (DB) 3 2011 (3) ALT 118 (S.B.) W.P.No.1074 of 2018 8 that if the rights are purely of private character, no mandamus can be issued and even if the respondent is part of "State", the other condition which has to be satisfied for issuance of a writ of mandamus is the public duty and in a matter of private character or purely contractual field, no such public duty element is involved and thus, mandamus will not lie.
11. A Division Bench of the erstwhile Andhra Pradesh High Court in the case of Union of India and others Vs. S.M. Hussain Rasheed and others4 has held that where there is a dispute as to whether a particular property vests or not, in the State or in any private individual, the dispute undoubtedly is a civil dispute and must, therefore, be resolved by a suit and not in a proceeding under Article 226 of the Constitution of India. It was further observed that the remedy under Article 226 shall not be available except where violation of some statutory duty on the part of a statutory authority is alleged and in such a case, the Court will issue appropriate direction to the authority concerned. It was also held that the High Court cannot allow the constitutional jurisdiction to be 4 2003 (5) ALD 150 (DB) W.P.No.1074 of 2018 9 used for deciding disputes, for which remedies, under the general law, civil or criminal, are available.
12. In view of these judgments and particularly that the dispute is with regard to the title and possession of the subject property, this Court is of the opinion that the same cannot be adjudicated in the Writ Petition and accordingly this Writ Petition is not maintainable and the appropriate remedy available to the petitioners is a suit in civil Court.
13. The Writ Petition is accordingly dismissed. However, the petitioners are given liberty to approach the civil court or any other appropriate forum which shall consider the case of the petitioners, if they so approached, on merits without being influenced by any of the findings of this Court in this Writ Petition. No order as to costs.
14. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 24.11.2022 Svv