Andhra HC (Pre-Telangana)
Habeeb Yahiya And Anr. vs Government Of A.P. And Ors. on 16 June, 2003
Equivalent citations: 2003(5)ALD215, 2003(6)ALT770
ORDER V.V.S. Rao, J.
1. The petitioners purchased an extent of Acs.5-00 and 2-14 gts. respectively, from respondents 3 to 5 herein. Be it noted that the respondents 3 to 5 herein are sons of late Mohammed Ghouse Pasha, who was Muthawalli of Darga Huzrath Mir Masoom Ali Shah. Be it also noted that the land admeasuring Acs. 10-00 in reserve forest block was excluded by the Reserve Forest Officer by notification dated 12-04-1972, as it was a Wakf land. After death of Muthawalli, Mohammed Ghouse Pasha, his three sons, respondents 3 to 5 herein were given succession and subsequently, they sold away the land to three persons including the petitioners herein.
2. The Mandal Revenue Officer by letter dated 8-5-2002 reported the matter to the Joint Collector - the first respondent herein as respondents 3 to 5 sold away the Wakf land to the petitioners and the mutation was done and the record of rights was accordingly altered. The Joint Collector took up the matter under Section 9, of the A.P. Rights in Land and Pattedar Pass Books Act, 1971 (the Act). The Joint Collector issued notices to the petitioners. They appeared before the Joint Collector and filed detailed written arguments contending that H.E.H. Nizam granted land to Mohammed Ghouse Pasha in his individual capacity and not to Wakf known as Darga Hazrath Mir Masoom Ali Shah. The Joint Collector considered the entire material especially the notification issued under Section 15 of A.P. Forest Act, 1967 and recorded a finding that the land was a grant to Wakf and not to its Muthawalli. Accordingly by the impugned order dated 24-5-2003, he directed the Mandal Revenue Officer - the second respondent herein to take necessary steps to correct entries in the relevant revenue records and enter the name of "Dargah Hazrath Mir Masoom Ali Shah Saheb for the years wherever occurring right from the year 1972 onwards. The Joint Collector also set aside the orders of the Mandal Revenue Officer dated 24-10-1991 and subsequent proceedings dated 23-10-1993 and 15-11-1996 whereby the mutation record was altered showing the names either petitioners or respondents 3 to 5.
3. The learned Senior Counsel Mr. Mohammed Imtiaz appearing for the petitioners raised two contentions; firstly, he contends that Section 9 of the Act does not stipulate any time within which the Joint Collector can exercise suo motu power. Therefore, according to the Senior Counsel, the power should be exercised within a reasonable time and the exercise of power after lapse of ten years is unsustainable in law. He also placed strong reliance upon the judgment of the Supreme Court in State of Gujarat v. Patil Raghav Natha, . Secondly, learned senior Counsel would submit that the land was a grant to Mohammed Ghouse Pasha, the father of respondents 3 to 5, and it is not a grant to Wakf and reliance is placed on the letter issued from the Office of the Secretary (Administration), Private Estate, H.E.H. The Nizam, dated 29th October, 1964 under reference File No. 45 (32) Baghat 1962.
4. It is now well settled that when tatute does not prescribe any time for exercise of a particular power, the power should be exercised within a reasonable time (See Hindustan Times v. Union of India, AIR 1998 SC 688). In a latest judgment rendered by me in C. Subhash Mudiraj v. Regional Joint Commissioner, Endowments Department, Hyderabad, , I considered these aspects and laid down as under:
"In my considered opinion, having regard to the nature of the power under Sub-section (1) of Section 92 of the Act, whereunder the Commissioner is vested with sue motu powers of revision to call for records for examination and modify or annul any order, the said power cannot be allowed to be defeated by the period of limitation under Sub-section (4) of Section 92 of the Act. In a given case, arguably, on application by aggrieved person made beyond ninety days, can itself be the basis for the Commissioner to exercise suo motu powers under Section 92 of the Act. As noticed, under Sub-section (1) broad powers are conferred either to reverse, modify, annul or remit the matter to the subordinate officials. I must, however, hasten to add that the above observations are subject to settled principle of law that when suo motu powers are conferred without prescribing any time limit, those powers are to be exercised within a period of reasonable time unless fraud or misrepresentation are used for obtaining favourable order."
The rule noticed hereinabove has an exception; when a benefit is obtained by playing fraud, the rule that a revisional jurisdiction shall be exercised within a reasonable time has no application. In Andhra Pradesh Scheduled Tribes Employees Association v. Aditya Pratap Bhanj Dev, (F.B.), speaking for the majority of the Full Bench, I have elaborately considered the aspect of 'fraud'. In Re. P. Shyam Rao, 1984 (2) ALT 386, Justice P.A.Choudhary has considered this aspect of the matter and laid down that when fraud is committed, the authorities are competent to withdraw the benefit at any point of time and the relevant portion of the judgment reads:
"Where no innocent third party interests have crept in, and where nature of fraud or misrepresentation is so glaring and patent crying out for judicial correction, and where assignee himself was privy to the fraud, it becomes the duty of the authority to take action immediately the moment fraud is detected and discovered. It is for that reason the statute gave power without reference to any time limit.... The theory of arbitrary cancellation and the improper exercise of jurisdiction, are all in my opinion, in applicable to a case of this nature,"
In this case, the notification issued by the Government under Section 15 of the A.P. Forest Act, 1967 would clearly show that the land was excluded from the Reserve Forest Block not because it belongs to late Mohammed Ghouse Pasha, but it belongs to the Wakf in question. If only the land had not been sought to be excluded on the ground that it is Wakf, the authorities would not have excluded from the Reserve Forest Block. I have reason to believe that father of respondents 3 to 5, who was Muthawalli, got the land excluded from the Reserve Forest Block by claiming the land as belonging to the Wakf Board. The respondents 3 to 5 cannot turn around and be permitted to contend, that the land belongs to Muthawalli and not to Wakf. Further, the relevant notification under Section 15 of the A.P. Forest Act is extracted in the impugned order which reads:
"A claim petition was filed by Sri Mohd. Ghouse Pasha Quadri claiming that an area of 10-00 acres belonging to the Dargah Hazrath Mir Masoom Ali Shah Saheb has been included in the Reserve Forest Block Imarath Kancha. As per the decision of Land Acquisition Officer, and the report of the Divisional Forest Officer, Hyderabad, an area of 10-00 acres has been excluded from the Reserve Forest Block of Imarath Kancha"
The above notification under A.P. Forest Act would belie the contention of learned senior Counsel appearing for the petitioners.
5. Insofar as second contention is concerned, the relevant portion in letter dated 29-10-1964 addressed by the Secretary (Administration), Private Estate, H.E.H. The Nizam reads as under:
"This agreement was signed by Shri Doulat Rai, Chief Conservator of Forest on behalf of the Government of Andhra Pradesh and Nawab Deen Yar Jung Bahadur on behalf of the Private Estate H.E.H, the Nizam as his G.P.A. In this agreement list serial No. 12 shows Kuncha Building measuring an extent of Ac.4119-33 guntas. Out of the above total extent, an extent of Ac. 10-00, a Grave Yard and Darga Hazrat Masoon Ali Shah is situated. Besides this, an extent of Ac.20-00 is kept as WAKF for the Mujaveren of Darga Hazrat Baba Sharfuddin Saheb R.H."
6. Indeed the said letter itself is addressed to Syed Mohammed Ghouse Pasha, Mutawalli of the Darga in question. The land was granted to the Wakf i.e., Grave Yard and Darga and the letter addressed to the Muthawalli of the Darga in question clinchingly proves that the Muthawalli was not granted, but Wakf was granted the land. Even otherwise, when a grant is given for the purpose of Grave Yard and Darga, it is reasonable to draw an inference that it is a grant to Wakf and not to its Muthawalli. Thus, there are no strong reasons to come to the conclusion that the grant was not to the Wakf.
7. The learned senior Counsel also raised a contention that by reason of the Wakf Act, 1994, the subject-matter is within the jurisdiction of the Wakf Tribunal constituted under Section 6 of the Wakf Act, 1994. Therefore, the order passed by the Joint Collector is without jurisdiction. I am afraid I cannot agree with the same. By reason of the impugned order, the Mandal Revenue Officer was directed to correct the entries showing Darga as the owner and possessor of the land. If the petitioners or respondents 3 to 5 are in possession of the property or claim ownership by reason of adverse possession or otherwise, it is for them to approach the Wakf Tribunal, or the Mandal Revenue Officer/Revenue Divisional Officer/Joint Collector or the appropriate authority to make necessary entries in the record of rights and also make alterations, if necessary. The Wakf Board under the A.P. Rights in Land and Pattedar Pass Books Act, 1971 is not competent to alter the entries in the record of rights. The submission therefore has no merit,
8. In the result, the writ petition is dismissed at the stage of admission.