The Aga Khan Trust For Culture vs Mohammed Jafferuddin And 13 ...
2021 Latest Caselaw 2485 Tel

     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.

::24::

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.

::25::

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.

::30::

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.

::31::

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'.

::32::

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.

::33::

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.

::34::

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.

::39::

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