Andhra HC (Pre-Telangana)
12.12.2012 vs The Revenue Divisional Officer, ...
Author: L.Narasimha Reddy
Bench: L.Narasimha Reddy
THE HON'BLE MR JUSTICE L.NARASIMHA REDDY
Writ Petition No.35115 of 2012
12.12.2012
The Revenue Divisional Officer, Nalgonda
A.P. State Wakf Board, represented by its Chief Executive Officer, Hyderabad
and others.
Counsel for petitioner: GP for Land Acquisition
Counsel for Respondent No.1 : Sri Mir Masood Khan
Counsel for Respondent No.2: Sri G.Ashok Kumar Reddy
Counsel for Respondent No.3 : Sri Nazir Ahmed Khan
Counsel for Respondent No.4 : Sri S.Srinivasa Varma
<GIST:
>HEAD NOTE:
? Cases referred
1. (1996) 7 SCC 218
2. AIR 1980 AP 205
3. AIR 1974 SC 2098
4. AIR 1970 SC 564
5. AIR 1971 SC 161
6. (2003) 6 SCC 675
7. (1997) 3 SCC 261
8. 2010 (7) Supreme 1059
9. 2002 (1) ALD 67 (DB)
ORDER:
This writ petition is filed challenging the order dated 06.06.2012 passed by the A.P. Wakf Tribunal, Hyderabad (for short 'the Tribunal') in I.A.No.376 of 2011 in O.S.No.80 of 2011.
The facts that gave rise to filing of the writ petition are as under:
The Central Government has taken up the work of widening National Highway No.9, between Vijayawada and Hyderabad, to a four lane road. The highway passes through Kattangur Village of Nalgonda District. There exists a mosque, by name Masjid-e-Mahammadia, and appurtenant land in that village, abutting the highway.
A notification under Section 3-A of the National Highways Act 1956 (for short 'the Act') was published on 01.06.2010 in the gazette and on 26.10.2010 in the newspapers, proposing to acquire various properties on both sides of road including the structures. An extent of 61 square yards of land belonging to the mosque was notified, since it came under alignment of the road. The petitioner herein was named as the competent authority. After the formalities provided for under Sections 3-B and C of the Act were complied with, a declaration under Section 3-D of the Act was published on 19.10.2010. The award in respect of the property of the Masjid was passed on 07.05.2011 in favour of the Chief Executive Officer of the Wakf Board, the 1st respondent, since the Masjid is under its control and administration and a sum of Rs.7,39,484/- was awarded. Demand draft covering that amount was forwarded to the 1st respondent on 07.11.2011. However, the 1st respondent returned the D.D., through covering letter dated 27.08.2011 stating that no notice, as contemplated under Section 97 of the Wakf Act, was issued, and the procedure prescribed under Section 9-3(10) of the Land Acquisition Act was not followed. He further stated that the demolition/removal of the Masjid would be illegal and unlawful. A request was made to avoid the acquisition.
Two persons by name Ghulam Shafiuddin Deshmukh and Zahinulabuddin Siddiqui (Muthavalli of the Mosque) filed W.P.No.7684 of 2010, challenging the action of respondents 1 and 2 therein, in conducting survey of the land around the Masjid, without initiating proceedings under the relevant provisions of law. The writ petition was dismissed on 17.11.2011 taking note of the fact that no objections were received to the notification issued under Section 3-A of the Act proposing to acquire the property; declaration under Section 3-D of the Act was published, and an award was passed on 16.04.2011.
The 1st petitioner in W.P.No.7684 of 2010 i.e. Ghulam Shafiuddin Deshmukh filed another writ petition, being W.P.No.21811 of 2011 feeling aggrieved by the passing of the award, in favour of the State Wakf Board. In a way, he claimed the right to receive the compensation. This Court dismissed the writ petition through order dated 27.07.2011 holding that the property vests in the Wakf Board and the compensation is payable to that organisation alone.
About two months thereafter the 1st respondent herein filed O.S.No.80 of 2011 before the Tribunal, claiming the relief of perpetual injunction, to restrain the petitioner herein, or anybody claiming through him, from acquiring or demolishing any portion of the Mosque. I.A.No.376 of 2012 was filed for temporary injunction. The petitioner herein was impleaded as sole defendant. Respondents 2 and 3 got themselves imleaded as plaintiffs 2 and 3. The National Highways Authority of India, was impleaded as 3rd defendant, in the suit.
In the plaint, as well as in the affidavit filed in support of the I.A., the case of the 1st respondent was that the Masjid was constructed over a century ago, it was serving the spiritual needs of local Mussalies, and that the petitioner herein sought to acquire portion of the property of the Masjid, without following the relevant provisions of law. It was also mentioned that no notices, as contemplated under Section 91 of the Wakf Act, or Sections 9(3) and (10) of the Land Acquisition Act were issued. It was pleaded that that acquisition is contrary to the instructions issued by the Government of A.P. in memo dated 12.09.1990.
In his written statement, in the suit, and counter in the I.A., the petitioner made a detailed reference to the proceedings that were issued under the provisions of the Act and the developments that have taken place from time to time. The fact that the award was passed and the amount was tendered through Demand Draft, was mentioned. The circumstances under which the portion of the Masjid had to be acquired and the nature of orders that were passed in the two writ petitions filed by various individuals challenging the notifications, were also stated. An objection was raised as to the very maintainability of the suit. Through its order dated 06.06.2012 the Tribunal allowed the I.A. Learned Government Pleader for Land Acquisition contends that the notifications are issued for acquisition of the land and structures that are affected in the widening of the road; by the Union of India, in exercise of power under Sections 3-A and 3-D of the Act and that the suit was not maintainable, that too without impleading the Union of India as a defendant. It is pleaded that the proceedings that are initiated under the Act can not at all be challenged in a suit, either before a civil Court or the Tribunal, which undertakes similar adjudication. The petitioner further states that by the time the suit was filed, the land vested in the Union of India by virtue of notifications and the award, and in that view of the matter, there was absolutely no basis for the Tribunal in granting the temporary injunction. The petitioner also states that all steps contemplated under the Act and the Rules made thereunder, including the one pertaining to service of notices at various stages, were taken in accordance with law. The petitioner contends that on account of the order of temporary injunction, the work is held up.
Sri Mir Masood Khan, learned Standing Counsel for the 1st respondent, raised an objection, as to the very maintainability of the writ petition. He submits that the Wakf Act is a self-contained code and apart from providing for constitution of a Tribunal and adjudication of the matters by it, that enactment provides for the remedy of revision to the High Court under Section 83 of the Wakf Act. He submits that being an Officer endowed with the duty to implement the orders that may be passed by the 1st respondent under the Wakf Act, and to discharge quasi-judicial powers, under the Act, the petitioner herein is not supposed to file a writ petition, by assuming the role of an adversary. Learned counsel further submits that not only the Parliament has enacted laws for protection of the places of worship, but also the Executive wing of the Government has been making endeavour to protect them, if necessary, by changing the plans and that the acquisition of the property of the Mosque is contrary to law. He submits that the Tribunal has examined the matter in great detail, and the order of temporary injunction passed by it on merits does not at all warrant reference. He contends that the balance of convenience is continuing.
Sri G.Ashok Kumar Reddy and Nazir Ahmed Khan, learned counsel for respondents 2 and 3, have virtually adopted the arguments of the learned Standing Counsel for the 1st respondent.
Sri S.Srinivasa Varma, learned Standing Counsel for the 4th respondent, submits that the National Highways Authority, is constituted under the Act and that it has absolutely no role, to play in the matter of acquisition of property under the Act. He contends that the acquisition of the property in question has assumed finality and that the suit was not maintainable.
Learned Government Pleader for Land Acquisition and learned Standing Counsel for the 1st respondent have placed reliance upon several precedents. The Act provides for declaration of any highways in the country to be the national highway, and on such declaration, it comes to be included in the schedule, appended to the Act. The control and maintenance of the National Highways vest in the Central Government. It also prescribes the procedure to be followed for acquisition of lands that are needed for laying or expansion of the national highways. The procedure for acquisition of properties is covered by Sections 3-A to J of the Act. It is almost a replication of the procedure prescribed under the Land Acquisition Act. Every step taken under the Act is by the Central Government. Just as a Land Acquisition Officer is appointed under the Land Acquisition Act, a competent authority is designated under the Act.
NH-9 between Hyderabad and Vijayawada has been taken up for widening. Quite large extent of land and number of properties abutting the highway were notified for acquisition under the Act. The details of the notifications, issued in relation to the property in question, have already been mentioned, in the preceding paragraphs. One of the items sought to be acquired was a portion of Mosque and appurtenant land of 60 square yards in Kattangur village. Attempts were made, may be by certain individuals, to oppose the acquisition by filing two writ petitions, being W.P.Nos.7684 of 2010 and 21811 of 2011. Both of them were dismissed.
In case the 1st respondent i.e. Wakf Board, had any specific grievance against the acquisition, and wanted to oppose the acquisition, it ought to have filed a writ petition, as did the persons, claiming interests in that very wakf. However, long after the proceedings of acquisition have reached almost the stage of finality, the 1st respondent has chosen to file a suit before the Tribunal. The Tribunal is constituted under Section 83 of the Wakf Act. It is conferred with the power to determine any dispute or question relating to wakf, or wakf property, covered by that enactment. The jurisdiction of the other civil Courts, in such matters is taken away. Sub-section (5) thereof makes it clear that the Tribunal shall be a civil Court, for all practical purposes. Since the Court is headed by an Officer of the rank of District Judge, by proviso to sub- section (9) thereof mandates that it is only the High Court either on its motion or on an application filed by the Wakf Board or any other person, that can call for the records relating to the dispute or the case and satisfy itself the correctness, legality or propriety of the determination made by the Tribunal. The provision reads:
"Section 83(9): No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may conform, reviews or modify such determination or pass such other orders as it may think fit."
Neither in the Land Acquisition Act, nor in the National Highways Act, there is any provision that vest the jurisdiction of the civil Court to test the legality of the notifications issued under the relevant provisions. Both the enactments, however, provide for a mechanism to ensure proper compliance at various stages, as well as adjudication of the matters pertaining thereto. Taking this aspect into account, the Supreme Court, in Laxmi Chand v. Gram Panchayat1 held as under:
""2... It is seen that Section 9 of the Civil Procedure Code, 1908 gives jurisdiction to the civil court to try all civil suits, unless barred. The cognizance of a suit of civil nature may either expressly or impliedly be barred. The procedure contemplated under the Act is a special procedure envisaged to effectuate public purpose, compulsorily acquiring the land for use of public purpose. The notification under Section 4 and declaration under Section 6 of the Act are required to be published in the manner contemplated thereunder. The inference gives conclusiveness to the public purpose and the extent of the land mentioned therein. The award should be made under Section 11 as envisaged thereunder. The dissatisfied claimant is provided with the remedy of reference under Section 18 and a further appeal under Section 54 of the Act. If the Government intends to withdraw from the acquisition before taking possession of the land, procedure contemplated under Section 48 requires to be adhered to. If possession is taken, it stands vested under Section 16 in the State with absolute title free from all encumbrances and the Government has no power to withdraw from acquisition.
3. It would thus be clear that the scheme of the Act is complete in itself and thereby the jurisdiction of the civil court to take cognizance of the cases arising under the Act, by necessary implication, stood barred. The civil court thereby is devoid of jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act. The only right an aggrieved person has is to approach the constitutional courts viz., the High Court and the Supreme Court under their plenary power under Articles 226 and 136 respectively with self- imposed restrictions on their exercise of extraordinary power. Barring thereof, there is no power to the civil court."
Thus, it is evident that the proceedings initiated under the Land Acquisition Act cannot be assailed before a civil Court and the same legal regime governs the proceedings under the Act, for acquisition of land. As a matter of fact, the Wakf Tribunal, in the instant case, proceeded on the assumption that the provisions of the Land Acquisition Act would govern the situation, at least to a substantial extent. Where, in clear terms the Hon'ble Supreme Court held that a civil court cannot adjudicate the dispute in relation to acquisition of land, the Tribunal ought not to have entertained the suit.
Another serious impediment before the Tribunal was that the Union of India, in whose name, the notifications under various provisions of the Act were issued, was not made a party to the suit. The petitioner, who is none other than an agent, identified to assist in the acquisition, was made a party. He is not the person, who issued the notifications, and he has virtually no say in the decision to issue notifications. He has been assigned certain functions, such as ascertaining the value of the land, passing of the award, and taking such other steps as are expected from a Land Acquisition Officer under the Land Acquisition Act. The attempt made to cure the defect was futile, since not the Union of India, but the National Highways Authority of India, the 4th respondent, was impleaded. The 4th respondent is a creature under the National Highways Authority of India Act, which is different and distinct from the Act. The Act spells out the sovereign power of eminent domain. On the other hand the National Highways Authority of India Act proposes to constitute certain authorities to maintain the national highways for and on behalf of the Union of India. The authority created thereunder, is not at all conferred with the power to acquire any land for the purpose of a Highway. It is only the roads that are already formed, which are entrusted to the 4th respondent for maintenance etc. The 1st respondent has virtually convinced the Tribunal that the properties owned by a wakf cannot be the subject-matter of acquisition and if the land forming part of a place of worship or appurtenant thereto. Heavy reliance was placed upon the Places of Worship Act. Much discussion was undertaken in this regard. The Tribunal has totally misapplied the provisions of that Act. It is only when a place of worship belonging to a religion, is sought to be converted into the place of worship of another religion, that the said enactment will get attracted. In the instant case, the property was acquired only for the purpose of widening of the road and not for conversion thereof into the place of worship of another religion.
One of the contentions advanced by the 1st respondent was that a Mosque or Idga cannot be acquired at all, even if it is by issuing notification under the relevant provisions of law. However, in Ashurkhana Nalsahabgadda v. District Collector, Medak2, a Division Bench of this Court, held:
"It would be seen that in compulsorily acquiring the property, the ownership of the property under acquisition is not sought to be questioned. While vesting a right in religious denomination to own and acquire property, Art.26 makes the administration of such property subject to the law. Of course any such law cannot affect the right to own or acquire property as such. That Article, however, does not, in any manner, deal with the right of the State to acquire the property for a public purpose. Although the learned Counsel for the petitioners plead reliance on the decisions of the Supreme Court in Commr.Hindu Religious Endowments v. L.t.Swamiar AIR 1954 SC 282, Sarup Sing v. State of Punjab AIR 1959 SC 860, Durgah Committee v. Hussain AIR 1961 SC 1402 and Saifuddin Saheb v. State of Bombay AIR 1962 SC 853 none of these decisions are directly in point. They deal with the extent of the right of the State to interfere with the administration and management of the religious institutions and properties and not with right of the State to acquire the property for a public purpose. In Khajamia Wakf Estaes v. State of Madras AIR 1971 SC 161, the Supreme Court had occasion to directly deal with this very question that falls for consideration before us. In that case the contention raised with reference to Madras Inam Estates (Abolition and Conversion into Ryotwari), Act 1963, (Madras Act XXVI of 1963), was that by abolishing the Inams and converting the same into patta, the fundamental rights guaranteed to the religious denomination under Arts.26 and 31 of the Constitution are affected. The court held that the Legislature, by providing in the Acts for acquisition of properties belonging to a religious denomination, has not violated Art.26 of the Constitution. The Supreme Court further observed that the provisions under Art.26 (c) and (d) do not take away the right of the state to acquire property belonging to religious denominations. These denominations can own, acquire properties and administer them in accordance with law. That does not mean that the property owned by them cannot be acquired by the State. Art.26 does not interfere with the right of the State to acquire property."
Reference was made to the judgments of the Supreme Court in Narendra Prasadji v. State of Gujarat3; Rustom Cavasjee Cooper v. Union of India4; and Khajamia Wakf Estates v. State of Madras5 and Their Lordships summed up the law as under:
"In view of these authoritative pronouncements of the Supreme Court, the first of which is with reference to Wakf property, the contention of the petitioners that the present acquisition violates Art.25 and Art.26 of the Constitution of India, does not merit acceptance and it is accordingly rejected."
Therefore, the very notion of the 1st respondent that the Masjid or part of it could not have been acquired, cannot be sustained.
Strong objection is raised as to the very maintainability of the writ petition. According to the learned counsel for the 1st respondent, the Wakf Act is a self- contained code and if the petitioner felt aggrieved by the order of temporary injunction passed by the Tribunal, a revision under Article 227 ought to have been filed. It has already been mentioned that the Wakf Act does not provide for any specific remedy of appeal and the proviso to sub-section 83(9) thereof acknowledges the power of superintendence or revision, of the High Court. In case the Wakf Act provided for filing of revision or appeal to the High Court under any provision, just as Section 90 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, or Section 79 of the A.P (Telangana Area) Abolition of Inams Act, provide that the petitioner could certainly have been required to avail the remedy under that provision. Except that it requires the power of superintendence of the High Court vis--vis the orders passed by the Tribunal, the Wakf Act did not stipulate any specific remedy. Further, it is not as if that the proviso is the source of jurisdiction for the High Court. The power of superintendence under Article 227 and the jurisdiction to correct the errors of the Tribunals and courts subordinate to it, by issuing writ of certiorari, under Article 226 is inherent in the High Court. It is not necessary that the concerned enactment provide for it. This was held to be part of basic structure of the constitution in Surya Dev Rai v. Ram Chander Rai6. Their Lordships of the Supreme Court have explained the difference between the jurisdiction of the High Court under those two articles. The distinction is almost semantic in nature, and is about the moulding of relief. It is apt to refer to the following paragraphs of the judgment:
"24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Radhikabai (1986 Supp SCC 401). Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.
25. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such direction as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as t the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well."
Support was taken from various precedents, including the judgment of the Supreme Court in L.Chandra Kumar v. Union of India7.
Reliance is placed by the learned counsel for the 1st respondent upon the judgment of the Supreme Court in Board of Wakf, West Bengal v. Anis Fatma Begum8. The respondent therein filed a civil suit on the original side of the Calcutta High Court, for a pronouncement as to the correctness or otherwise of an arrangement made under wakf deed, and allocation of a portion of property, to a wakf. The Supreme Court took the view that the matter pertaining to the wakf property cannot straight away be field in the Supreme Court, and the suit should be first instituted in the Wakf Tribunal constituted under Section 83 of the Wakf Act. There is no comparison between the facts of that case and the case on hand.
Another contention advanced of the learned counsel for the 1st respondent is that a writ of prohibition cannot be issued prohibiting a quasi-judicial authority from discharging their statutory functions. Reliance is placed upon the judgment of the Division Bench of this Court in Allaudduin Charities and Zakath Wakf v. Hameed Ali9. Therein writ petitions were filed challenging the orders passed by the Chief Executive Officer of the Wakf Board under Section 54 of the Wakf Act directing eviction of the writ petitioners.
This Court found that Section 54 of the Act provides for a comprehensive remedy and if any person feels aggrieved by the notices issued or orders passed thereunder, the only remedy is to approach the Wakf Tribunal, and that a writ petition cannot be maintained. In the present case, no proceedings issued by the Wakf Board were under challenge. On the other hand, it is the 1st respondent which instituted a suit, challenging the very acquisition made under the Act. If at all anything, it was the suit filed by the 1st respondent that was not maintainable, and not the writ petition which is filed against an order of temporary injunction passed in such a suit.
The writ petition is therefore, allowed and the impugned order passed by the Tribunal in I.A.No.376 of 2012 in O.S.No.80 of 2011 dated 06.06.2012 is set aside. It is left open to the 1st respondent to work out its remedies vis--vis the acquisition in accordance with the procedure prescribed under the National Highways Act.
The miscellaneous petition filed in this writ petition shall also stand disposed of. There shall be no order as to costs.
____________________ L.NARASIMHA REDDY, J.
Dated:12.12.2012