Telangana High Court

Syed Hyder Mohiuddin Hussaini vs State Of Telangana on 2 February, 2022

Bench: Satish Chandra Sharma, Abhinand Kumar Shavili

  THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                 AND
     THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI



    WRIT PETITION Nos.11761, 20486, 28023 and
                       33393 of 2021


COMMON ORDER:     (Per the Hon'ble the Chief Justice Satish Chandra Sharma)




     W.P.Nos.11761 and 28023 of 2021 have been filed

questioning the jurisdiction of the Telangana State Human

Rights Commission (hereinafter referred to as, "the HRC") in

passing the order dated 12.04.2021 in H.R.C.No.2704 of 2020

and for quashment of the said order.


     W.P.Nos.20486 and 33393 of 2021 have been filed

seeking implementation of the order dated 12.04.2021 passed

by the HRC in H.R.C.No.2704 of 2020.


     Regard being had to the controversy involved in the

aforesaid cases, they are heard together and are being

decided by a common order.


     The facts of W.P.No.28023 of 2021 are reproduced as

under:-


     The petitioners before this Court have filed the present

writ petition being aggrieved by an order dated 12.04.2021
                                    2




passed by the HRC in H.R.C.No.2704 of 2020.                            The

undisputed facts of the case reveal that M/s.Lorven Projects

Ltd., a company registered under the Companies Act, 1956,

and one Syed Raheemullah Hussaini came up before the HRC

stating that the State of Telangana, the Chief Commissioner

of Land Administration, the District Collector, Ranga Reddy

District, the Commissioner of Police and other Police

authorities have taken possession of their property to an

extent of Acs.84.30 guntas. It was also stated before the HRC

that a Firman was issued by the then Nizam, the erstwhile

Ruler, on 18th Rajjab 1343 Hijri and by virtue of the Firman

issued by the Nizam, they are the titleholders of the property.

The HRC after hearing the parties, has passed the impugned

order and the relevant portion of the said order is reproduced

as under:-

             "Under the above facts and circumstances, the 2nd
     respondent i.e. the CCLA (Authority under the Court of

Wards Act, 1350 Fasli) is directed to issue a Notification for withdrawal of Superintendence over the Petition Schedule Land (Item No.11, out of 21 properties) to an extent of 84 Acres 30 Guntas situated at Sy.No.46 of Raidurg Village, Serilingampally Mandal, Ranga Reddy District, by exercising powers U/Section 64 of Court Of Wards Act 1350F, which is mandatory as per the release Firman dated 17th Ramzan 1348 Hijri issued by H.E.H. The Nizam, by disposing of the petition pending before the 2nd respondent i.e., the CCLA (Authority under the Court of Wards Act, 1350 Fasli) since 05.11.2005 vide Application No.NA2/523/2005, renumbered as NA2/95/2012, in favour of the successors of Late Syed Akbar Hussaini as per the Succession approved by H.E.H. The Nizam, without any

further delay. Accordingly, the 7th issue is answered in favour of the petitioners."

The HRC has passed an order directing the authority

under the Court of Wards Act, 1350 Fasli, to issue a

Notification for withdrawal of superintendence over the

petition schedule land to an extent of Acs.84.30 guntas by

exercising powers under Section 64 of the Court of Wards Act,

1350 Fasli, keeping in view the Firman issued by the

erstwhile Ruler, the Nizam, dated 17th Ramzan 1348 Hijri.

Meaning thereby, a legal sanction has been given to the

Firman issued by the Nizam by the HRC and the property

which is in the custody of the Authority under the Court of

Wards Act has to be released in favour of the complainants

before the HRC.

Learned Counsel for the State Government has

vehemently argued before this Court that the property dispute

could not have been adjudicated by the HRC and in case the

complainants before the HRC are claiming title over the

property, the proper remedy was to file a suit along with an

application for grant of interim orders under Order XXXIX

Rules 1 and 2 of the Code of Civil Procedure (CPC). He has

stated that for deciding a civil suit a detailed procedure is

prescribed under the CPC and no procedure has been

followed by the HRC while passing the impugned order. He

has also argued before this Court that a Second Appeal in

respect of the same property is pending before this Court i.e.,

S.A.No.1118 of 1999 and the aforesaid factum has not been

denied by the other side. Learned counsel appearing for the

respondents No.1 and 2 has vehemently argued before this

Court that the HRC was justified in passing the aforesaid

order keeping in view Sections 12 to 14 of the Protection of

Human Rights Act, 1993.

Sections 12 to 14 of the Protection of Human Rights Act,

1993, read as under:-

"12. Functions of the Commission:- The Commission shall perform all or any of the following functions, namely:--

(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf or on a direction or order of any court, into complaint of--

(i) violation of human rights or abetment thereof; or

(ii) negligence in the prevention of such violation, by a public servant;

(b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;

(c) visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government;

(d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;

(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures;

      (f)    study    treaties       and     other      international
             instruments on human rights and make
             recommendations           for          their      effective
             implementation;

      (g)    under take and promote research in the field
             of human rights;

      (h)    spread human rights literacy among various

sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;

(i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights;

(j) such other functions as it may consider necessary for the promotion of human rights.

13. Powers relating to inquiries:- (1) The Commission shall, while inquiring into complaints under this Act, have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), and in particular in respect of the following matters, namely:--

(a) summoning and enforcing the attendance of witnesses and examining them on oath;

(b) discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any court or office;

(e) issuing commissions for the examination of witnesses or documents;

(f) any other matter which may be prescribed.

(2) The Commission shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of Section 176 and Section 177 of the Indian Penal Code (45 of 1860).

(3) The Commission or any other officer, not below the rank of a Gazetted Officer, specially authorised in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any document relating to the subject-matter of the inquiry may be found, and may seize any such document or take extracts or copies therefrom subject to the provisions of Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974), insofar as it may be applicable.

(4) The Commission shall be deemed to be a civil court and when any offence as is described in Section 175, Section 178, Section 179, Section 180 or Section 228 of the Indian Penal Code (45 of 1860) is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973 (2 of 1974), forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under section 346 of the Code of Criminal Procedure, 1973.

(5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purposes of Section 196, of the Indian Penal Code (45 of 1860), and the Commission shall be deemed to be a civil court for all the purposes of

Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974);

(6) Where the Commission considers it necessary or expedient so to do, it may, by order, transfer any complaint filed or pending before it to the State Commission of the State from which the complaint arises, for disposal in accordance with the provisions of this Act:

Provided that no such complaint shall be transferred unless the same is one respecting which the State Commission has jurisdiction to entertain the same.

(7) Every complaint transferred under sub- section (6) shall be dealt with and disposed of by the State Commission as if it were a complaint initially filed before it.

14. Investigation:- (1) The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilise the services of any officer or investigation agency of the Central Government or any State Government with the concurrence of the Central Government or the State Government, as the case may be.

(2) For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency whose services are utilised under sub-section (1) may, subject to the direction and control of the Commission,--

(a) summon and enforce the attendance of any person and examine him;

(b) require the discovery and production of any document; and

(c) requisition any public record or copy thereof from any office.

(3) The provisions of Section 15 shall apply in relation to any statement made by a person before any officer or agency whose services are utilised under sub-section (1) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission.

(4) The officer or agency whose services are utilised under sub-section (1) shall investigate into any matter pertaining to the inquiry and submit a report thereon to the

Commission within such period as may be specified by the Commission in this behalf.

(5) The Commission shall satisfy itself about the correctness of the facts stated and the conclusion, if any, arrived at in the report submitted to it under sub- section (4) and for this purpose the Commission may make such inquiry (including the examination of the person or persons who conducted or assisted in the investigation) as it thinks fit."

This Court has carefully gone through the aforesaid

statutory provisions of law and is of the considered opinion

that the property dispute wherein there are rival claims

claiming the property could not have been decided in the

manner and method which has been done by the HRC

upholding the so-called Firman which was issued on 17th

Ramzan 1348 Hijri. The declaration of title and the issue of

validity of Firman can only be looked into in a civil suit and

the Second Appeal is also pending on the subject.

Learned counsel for the respondents No.1 and 2 has

vehemently argued before this Court, that in the light of the

judgment delivered by the Full Bench of High Court of Madras

in Abdul Sathar v. The Principal Secretary to Government,

Home Department and others1, the order of the HRC is in

accordance with law and it does not warrant any interference.

He has also vehemently argued before this Court that the

right to property is a constitutional right and therefore, the

1 (2021) 3 MLJ 321

Full Bench of the High Court of Madras was justified in

delivering the aforesaid judgment holding that the HRC does

have the power to adjudicate such a dispute.

This Court has gone through the aforesaid judgment.

In the present case, the right of the respondents No.1 and 2 is

yet to be established and is under dispute before the civil

Court and therefore, once the right itself is in dispute, the

HRC could not have adjudicated the issue at all, especially

when the disputed questions of fact were involved and also

especially when the Second Appeal on the subject is pending

before this Court.

The Hon'ble Supreme Court in the case of

G. Manikyamma v. Roudri Coop. Housing Society Ltd., 2 in

paragraphs 40 and 41 has held as under:-

"40. The Human Rights Commission, in our view, would not be competent forum for the examination of the abovementioned issues. Both the first respondent Society as well as the encroachers, in our view, wrongly invoked the jurisdiction of the Human Rights Commission instead of pursuing the appropriate remedies available to them in law, and the Human Rights Commission was too willing to exercise authority without any jurisdiction. We are also of the opinion that the High Court resorted to more of a mediation activity than the determination of the legal issues involved in the case.

41. In our opinion, the Human Rights Commission does not have any jurisdiction to deal with the disputed questions of title and possession of the property."

2 (2014) 15 SCC 197

In the light of the aforesaid judgment, as the HRC,

based upon a complaint made by some private builder and

another, has passed an order in the disputed facts and

circumstances of the case, in the considered opinion of this

Court, the HRC was certainly not at all having the jurisdiction

to decide the property dispute in the manner and method it

has been done.

The facts also reveal that the complainant No.1 before

the HRC was a Company registered under the Companies Act

and this Court fails to understand as to how the human

rights of a company were violated as held by the HRC. Not