G. Mecheal vs The State Of Telangana,
2022 Latest Caselaw 6128 Tel

      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

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

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

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

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

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

(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

(2015) 7 SCC 728

2003 (5) ALD 150 (DB)

2011 (3) ALT 118 (S.B.) W.P.No.1074 of 2018

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

2003 (5) ALD 150 (DB) W.P.No.1074 of 2018

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