Karnataka High Court
The State Of Karnataka vs Syed Shaha Hajarath Hussaini Since Decd ... on 20 February, 2013
Author: N.Kumar
Bench: N.Kumar
1
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH
AT GULBARGA
Dated this the 20th day of February, 2013
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
Writ Petition No. 29945 of 2004 (LR)
C/w
Writ Petition No. 43747 of 2004 (LR)
Writ Petition No. 44097 of 2004 (LR)
Writ Petition No. 44098 of 2004 (LR)
&
Writ Petition No. 44099 of 2004 (LR)
In Writ Petition No. 29945 of 2004 (LR)
BETWEEN:
Karnataka State Board of Walks
No.6, Cunningham Road
Bangalore - 560 052
Rep. by Chief Executive Officer ... Petitioner
(By Sri P.S. Malipatil & Sri Veeranagouda,
Advocates)
2
AND:
1. Syed Shah Hazrath Hussaini
Since deceased his LRs.,
1(a) Smt. Zeenat Banu Hussaini
Major
D/o Syed Shah Hazrath Hussaini
1(b) Syed Shah Ahmed Hussaini
S/o Shed Shah Hazrath Hussaini
Both are residents of Badepur Village
Gulbarga Taluk
Gulbarga District
2. State of Karnataka
Revenue Commissioner
Vidhana Soudha
Dr. Ambedkar Veedhi
Bangalore
3. The Land Tribunal
Gulbarga
Gulbarga Taluk
4. District Wakf Advisory Committee
Gulbarga Taluk
Gulbarga District
5. Syed Shah Pasha Hussaini
S/o late Syed Shah Ibrahim Hussaini
Aged about Major
Resident of Momipur (Badkal)
Gulbarga
Rep. by its GPA holder
Syed Shah Noorullah Hussaini ...Respondents
3
(By Sri A. Syed Habeeb, Advocate for R1(a) and (b);
Sri Shivakumar Tengli, AGA for R2 and R3;
R4 served unrepresented;
Sri Liyaqat Fareed Ustad, Advocate for R5)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to issue a writ in the
nature of certiorari to quash the order of the Land Tribunal,
Gulbarga, dated 15-12-2003 vide Annexure-C & etc.,
In Writ Petition No. 43747 of 2004 (LR)
BETWEEN:
1. The State of Karnataka
Represented by the
Secretary to Government
Public Works Department
M. S. Building
Bangalore - 560 001
2. The Executive Engineer
Public Works Department
Gulbarga Division
Gulbarga ... Petitioners
(By Sri Shivakumar Tengli, AGA)
AND:
1. Syed Shah Hajarath Hussaini
Since deceased his LRs.,
1(a) Smt. Jeenabanu Saheba
W/o late Syed Shah Hussaini
Aged about 59 years
4
1(b) Syed Shaha Ahmed Hussaini
S/o Shed Shaha Hajarath Hussaini
Both are residents at
House No.7-113, Bhadkal
Moninpura Village
Gulbarga
2. The Land Tribunal
Gulbarga Taluk
Gulbarga
Represented by its Secretary ...Respondents
(By Sri A. Syed Habeeb, Advocate for R1(a) and (b))
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to call for the records of
the Land Tribunal, Gulbarga, the second respondent herein,
as per Annexure-A and etc.,
In Writ Petition No. 44097 of 2004 (LR)
BETWEEN:
Smt. Ameena Firdouse
W/o Syed Zafar Hussain
Age: 27 years
Occ: Agriculture
R/o H.No.6-437/A
Near Khunialawa
Mominpura
Gulbarga ... Petitioner
5
(By Sri Raja Venkatappa Naik for
Sri N. Krishnacharya, Advocates)
AND:
1. The State of Karnataka
Through Chief Secretary
Vidhana Soudha
Bangalore - 560 001
2. The Secretary & Commissioner
Department of Revenue
Govt. of Karnataka
Vidhana Soudha
Bangalore - 1
3. The Deputy Commissioner
Revenue
Gulbarga District
Mini Vidhana Soudha
Gulbarga
4. The Asst. Commissioner
Revenue
Gulbarga Sub-Division
Mini Vidhana Soudha
Station Road
Gulbarga
5. The Executive Engineer
Public Works Department
Jewargi Colony Road
Gulbarga
6. The Tahsildar (Revenue)
Taluka Gulbarga
Jagat Road
Gulbarga City
6
7. Smt. Zinath Banu
W/o late Syed Shah Hazrath Hussaini
Age 60 years
Occ: Agriculture & Household
8. Syed Shah Ahmed Hussaini
S/o late Syed Shaha
Hazrath Hussaini
Age 25 years
Occ: Agriculture and Business
Both are R/o Bhadakal Mominpura
Tq. and Dist. Gulbarga ...Respondents
(By Sri Shivakumar Tengli, AGA for R1 to R6;
Sri A Syed Habeeb, Advocate for R7 and R8)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the impugned
order dated 16-7-2004 passed by learned respondent No.4
declaring as arbitrary, without jurisdiction and suffers from
illegality and violated Articles 14, 21 39A, 41, 300A of the
Indian Constitution as per Annexure-N and etc.,
In Writ Petition No. 44098 of 2004 (LR)
BETWEEN:
Dr. Mohammed Mehmood Khuram
S/o Gulam Mustafa
Age 26 years
Occ: Agricu8lture & Business
R/o H.No.5-992/13E
Near Kamal Mujrad Masjid
Yadulla Colony
Gulbarga ... Petitioner
7
(By Sri Raja Venkatappa Naik for
Sri N. Krishnacharya, Advocates)
AND:
1. The State of Karnataka
Through Chief Secretary
Vidhana Soudha
Bangalore - 560 001
2. The Secretary & Commissioner
Department of Revenue
Govt. of Karnataka
Vidhana Soudha
Bangalore - 1
3. The Deputy Commissioner
Revenue
Gulbarga District
Mini Vidhana Soudha
Gulbarga
4. The Asst. Commissioner
Revenue
Gulbarga Sub-Division
Mini Vidhana Soudha
Station Road
Gulbarga
5. The Executive Engineer
Public Works Department
Jewargi Colony Road
Gulbarga
6. The Tahsildar (Revenue)
Taluka Gulbarga
8
Jagat Road
Gulbarga City
7. Smt. Zinath Banu
W/o late Syed Shah Hazrath Hussaini
Age 60 years
Occ: Agriculture & Household
8. Syed Shah Ahmed Hussaini
S/o late Syed Shaha
Hazrath Hussaini
Age 25 years
Occ: Agriculture and Business
Both are R/o Bhadakal Mominpura
Tq. and Dist. Gulbarga ...Respondents
(By Sri Shivakumar Tengli, AGA for R1 to R6;
Sri A Syed Habeeb, Advocate for R7 and R8)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the impugned
order dated 16-7-2004 passed by learned respondent No.4
declaring as arbitrary, without jurisdiction and suffers from
illegality and violated Articles 14, 21 39A, 41, 300A of the
Indian Constitution as per Annexure-N and etc.,
In Writ Petition No. 44099 of 2004 (LR)
BETWEEN:
Sri Wajid Ali
S/o Masood Ali
Age 26 years
Occ: Agriculture & Business
R/o H. No.6-437/A
9
Mominpura
Gulbarga ... Petitioner
(By Sri Raja Venkatappa Naik for
Sri N. Krishnacharya, Advocates)
AND:
1. The State of Karnataka
Through Chief Secretary
Vidhana Soudha
Bangalore - 560 001
2. The Secretary & Commissioner
Department of Revenue
Govt. of Karnataka
Vidhana Soudha
Bangalore - 1
3. The Deputy Commissioner
Revenue
Gulbarga District
Mini Vidhana Soudha
Gulbarga
4. The Asst. Commissioner
Revenue
Gulbarga Sub-Division
Mini Vidhana Soudha
Station Road
Gulbarga
5. The Executive Engineer
Public Works Department
Jewargi Colony Road
Gulbarga
10
6. The Tahsildar (Revenue)
Taluka Gulbarga
Jagat Road
Gulbarga City
7. Smt. Zinath Banu
W/o late Syed Shah Hazrath Hussaini
Age 60 years
Occ: Agriculture & Household
8. Syed Shah Ahmed Hussaini
S/o late Syed Shaha
Hazrath Hussaini
Age 25 years
Occ: Agriculture and Business
Both are R/o Bhadakal Mominpura
Tq. and Dist. Gulbarga ...Respondents
(By Sri Shivakumar Tengli, AGA for R1 to R6;
Sri A Syed Habeeb, Advocate for R7 and R8)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the impugned
order dated 16-7-2004 passed by learned respondent No.4
declaring as arbitrary, without jurisdiction and suffers from
illegality and violated Articles 14, 21 39A, 41, 300A of the
Indian Constitution as per Annexure-N and etc.,
These Writ Petitions coming on for hearing this day,
the Court made the following:
11
ORDER
Writ Petition No.29945/04 is preferred by the Karnataka State Board of Wakf challenging the order of the Land Tribunal, Gulbarga in No.LRM:INM:485/84-85 Dated 15.12.2003. W.P.No.43747/04 is preferred by the State of Karnataka, challenging the very same order passed by the Land Tribunal. After the grant of the land, the grantees with the permission of the Assistant Commissioner, sold portions of the property granted, measuring 12 guntas each, to the three purchasers under a registered sale deed dated 29.03.2004 in favour of the three purchasers. Subsequently, by order dated 16.07.2004, the Assistant Commissioner cancelled the permission to sell the property granted earlier. Aggrieved by the said order, the three purchasers have preferred W.P.Nos.44097/04, 44098/04 and 44099/04. As the fate of these three writ petitions hangs on the decision to be rendered in the other two writ petitions, they are also taken up for consideration together and all the five writ petitions are disposed of by this common order. 12
2. The subject matter of this proceedings is land bearing Sy.No.1, 2, 3 of Badepur Village, measuring 5 acres 3 guntas, which now forms part of Gulbarga City. In fact, it is situated in the heart of the Gulbarga City, for short, hereinafter referred to as 'schedule property'.
3. R-1(1) and R-1(2) being the successors and legal heirs of the original inamdars are claiming this property. In the statement of objections filed to the first two writ petitions, they have set out their case. Their case is that they are direct heirs and descendants of Sajjadda Nasheen Hazrah Syed Shah Hissamuddin Soherwardia Teg Barhana, Jagat Tank, Gulbarga. This Darga has a long history. The Maharaja of Kalyani of the Chalukya Kingdom, in the year 402 Hirji had issued a Sanad by granting 2000 acres of land for the maintenance of the said Dargah. The Nizam of Hyderabad Niaamul Mulk Asi Jahi, by issue of a royal Ferman confirmed the Sanad given by the Chalukya King and issued a fresh Sanad. The second respondent is the 13 only spiritual head of the Sohar Wardia School of Teg Barhana being the first born child of the eldest line of the family. Only the second respondent in accordance with the customs and usages strictly performs the services of the Dargah and the annual ceremonies. There is also a Muntakab issued by the erstwhile Nizam Government of Hyderabad bearing Muntakhab No.4475 dated 24th Ramzan 1326. H. equivalent to 15th Azur 1318 F. Under column 10 of the Muntakhab it is ordered that 22 acres and 20 guntas of inam land, which was under the Dargah Hazrath Syed Shah Hissamuddin Teg Barhana shall continue in perpetuity with the family of the Hazrath Syed Shah Hissamuddin Teg Barhana. They claim as per the Will of the sajjad Nasheen Syed Shah Ahammed Hussaini Teg Barhana, who was the real Sajjada Nasheen of the said Dargah along with the inam lands and Badasha Hussainni was appointed only as a supervisor to perform the duties of Sajjadagir during the minority of the genuine heir.
14
4. Survey No.1, 2 and 3 of Badepur vaillage are inam lands of Syed Shah Hissamuddin Teg Barhana Dargah and late Syed Shah Hazrath Hussainni was the Sajjadda and Muttawalli of the said Dargah. He therefore made an application as Inamdar and Jagirdar for grant of occupancy right in respect of Sy.No.1 of Badepur village measuring 5 acres and 3 guntas under the provisions of the Karnataka Inams Abolition Act. During the pendency of consideration of the said application, the Executive Engineer P.W.D tried to auction the land by forming sites. They approached this Court in W.P.No.15679/85 seeking for an order restraining the P.W.D. from auctioning of the sites. Thereafter the Land Tribunal, Gulbarga, by an order dated 27.02.1993 rejected the application filed by Syed Shah Hazrath Hussaini without impleading the legal representatives of late Syed Shah Hazrath Hussaini. As the order was passed exparte, the same was challenged in W.P.16798/93 before this Court. The said order was set aside and the matter was remanded back to the Tribunal for fresh consideration. When the 15 matter was pending before the Tribunal, an attempt was made to put up construction of K.S.R.T.C. bus stand. Again they approached this Court in W.P.No.31599/03 and obtained an order of stay. Thereafter the Tribunal by impugned order dated 15.02.2003 granted occupancy right in their favour.
5. The Tribunal in the impugned order has observed as under:
"In Khasra Pahani and the RoRs thereafter the Sy.No.1 of village Badepur measuring 5 acres 3 guntas has been mentioned as Government Garian. In the column of Pattedar/Inamdar of the Khasra Pahani, it is written as "Padkik (fallow)" and "Jisil Khana Srkari". Also in the column No.9 of the RoR for the year 1973-74, it has been shown as Government Gairan and in column No.12, it has been shown as Government Zeel (tank). In column No.5 of the Khasra Pahani, in the particulars of the name of the land, it is written as Take Buran Darga. That means the 16 Take Buran Darga is situate in the suit land. In the columns of Patta, Inam or Government, it is mentioned as Government. That means, it is seen that, as back as in the year 1954-55, the Khasra Pahani mentions as the suit land as Government land. But the applicant argues that the suit land is permanent Inaam Land and hence prays for granting the occupancy rights.
As the applicant argues that the suit lands are Inaam Lands then he should have submitted the objection petition long back and the Revenue Records being got corrected. Even after commencement of Karnataka Land Revenue Act, 1964, the applicant would have made representation in prescribed form and should have taken remedial measures for correcting the Revenue Records. But the applicant has not opted for such legal procedure. It is seen that the applicant has been filed after five years of the commencement of Several Inaam Abolition Act, 1977.
17
The Take Buran Darga is situate over an area of 2 to 3 acres out of 5 acres 3 guntas of the suit land. Also the Darga and the graves are situate in the said area.
As per the provisions of the Several Inaam Abolition Act, 1977, the form will have to be submitted in prescribed format within prescribed time for grant of occupancy rights and the applicant should be in possession of the land on or before 1-3-1977. The applicant has submitted xerox copy of Muntakhaba to prove that the suit land is Inaam Land. But the Revenue Records have not been rectified as per Muntakhaba. That even before 1954- 55 when the Khasra Pahani were written, the suit land was considered as Government fallow land.
As per the rights conferred by the provision of Karnataka Several Inaam Abolition Act, it is to be decided about the occupancy rights over the application submitted for Government Inaam Land occupancy rights, submitted within time and in prescribed format.
18
As seen from the elucidation above, the suit land is a Government Gairan as per the Revenue Records and not Inaam Land. Hence the matter of deciding the application does not come under the preview of this Land Tribunal. Therefore it is not fit to allow the prayer of the applicant.
But the other 4 members of Land Tribunal have submitted their opinion in writing and pleaded for grant of occupancy rights of suit land to the L.Rs of applicant by name Smt. Zinath Banu W/o Late Syed Sha Hajrat Hussasin Take Buran and Syed Sha Ahemad Hussain S/o Shyed Sha Hajart Hussain."
6. A perusal of the aforesaid order of the Tribunal makes it very clear that the schedule land is a Government land. It is a Gairan as per the revenue records. The applicants name is not found in the record of rights. Teg 19 Duran Darga is situated in the schedule land. Graves are also situated in the said land. In the revenue records, there is no recital of Muntakhab on which reliance is placed by the applicants. Application for grant of occupancy rights is filed under Several Inaam Abolition Act, 1977, five years after the commencement of the said Act. At any rate, the record of rights do not show that prior to 01.03.1974, the land in question was an agricultural land and the applicant was cultivating the said land in any capacity. Therefore, the Chairman of the Land Tribunal was of the considered opinion that in the light of the aforesaid materials it is not possible to grant occupancy right in favour of the applicant. However, four Members of the Tribunal gave their opinion in writing granting occupancy rights. The impugned order was passed granting occupancy rights. It is relevant to point out that the four Members of the Tribunal have not written any considered order considering the material on record and giving reasons how they have come to the conclusion that land in question is not an agricultural land, it was a inam 20 land and that the applicant was cultivating the land prior to 01.03.74. It is the opinion of the majority, without reasons, which unfortunately is made the basis for allowing the application granting occupancy rights.
7. The learned Counsel appearing for the Karnataka Board of Wakf, contends that the schedule property is a wakf property. The Government of Karnataka has issued a notification on 16.07.1974 under Section 5(2) of the Wakf Act, 1954, declaring the schedule property as wakf property. The schedule property is shown at Sl.No.237 and therefore he contends that the Land Reforms Tribunal could not have granted occupancy rights in respect of the wakf property in favour of the applicants.
8. The learned Government Advocate assailing the impugned order contends that the schedule land is not an agricultural land. Now it is situated in the heart of Gulbarga City. In the schedule land, there existed a Jail for more than 21 100 years. Now the Jail is demolished and in the year 1964 itself, the said land was used for constructing super-market and in fact, super market was constructed. In the first place, if it is not an agricultural land, it is not the land belonging to the Wakf Board. If it is not an inam land, the applicants are not inamdars of the said land and the provisions of Several Inaams Aboloition Act, has no application to the land in question. Though all these aspects were before the Tribunal to which there is reference made to in the impugned order, still, because the majority of the Members of the Tribunal wanted to grant the occupancy rights, the impugned order has been passed, which is ex- facie illegal, without jurisdiction and liable to be set aside.
9. Per contra, the learned Counsel appearing for the applicants/purchasers of a portion of the property contended that the land originally was gifted by Raja of Chalukya who was ruling Basavakalyana. Hazrat Hisamuddin Teg Barhana, a scholar in Sanskrit and 22 Arabic, had come to Gulbarga, which was then known as Asurapatna. He was teaching Sanskrit to the daughter of Chalukya Raja. In consideration of the same, Chalukya Raja gifted the land to him and also gave his daughter in marriage. Therefore it is a personal inam. The applicants before the Tribunal were the legal heirs successors in interest of the said original grantee. After the Nizams extended their rule to this area, they set up a committee to enquire into the claims of all such inams. Then they have issued muntakhab measuring about 22 acres 20 guntas in favour of the legal heirs of the original grantee. After coming into operation of Inams Abolition Act, the said land vested with the Government under the provisions of Karnataka Certain Inams Abolition Act, 1977. In terms of the said Act, the applicants made an application for grant of occupancy rights. After enquiry it has been granted. The grant is valid and legal. In fact, after the grant they made an application to the Assistant Commissioner for grant of permission on 05.03.2004. Permission was granted on 27.03.2004. After 23 the permission they have sold three bits of land measuring 12 guntas each, in favour of three purchasers on 29.03.2004. The purchasers got the mutation entries made in their name on the basis of the registered sale deeds. It is thereafter, the Assistant Commissioner, behind their back cancelled the permission granted, by order dated 16.07.2004. The said order was challenged before the Deputy Commissioner, who granted stay of the said order, by his order dated 12.10.2004. It is in this background, the purchasers have filed these writ petitions challenging the cancellation of the permission granted earlier. Therefore, it is submitted that the impugned order passed do not suffer from any legal infirmity which calls for interference. In fact, the learned Counsel appearing for the other applicants adopted the above arguments.
10. In the light of the aforesaid facts and rival contentions, the point that arises for consideration is as under:
24
"Whether the impugned order is valid and legal or it is liable to be set aside?"
11. In the earlier part of the judgment, the case of the applicant as pleaded in the statement of objections is set out. Their case is that the grant was in favour of Darga. It was not a personal grant in favour of Sajjadda Nasheen Hazrath Syed Shah Hissamuddin Soherwardia Teg Barhana Darga. However the argument canvassed before this Court is, it was a personal grant. Depending upon this factual aspect this Court has to decide which law is applicable. Similarly, the Wakf Board contends that it is a Wakf property. Therefore, it is also necessary to decide whether it is a Wakf property. Before going into this factual aspect, it is necessary to notice the various laws passed by the legislature in respect of these lands.
12. After independence and adopting the Indian Constitution the first thing which the Government at the 25 Centre and the State made was to bring in agrarian reforms. Substantial portion of the land throughout the country was in the ownership of persons who were not cultivating the lands. The persons who were cultivating the lands had no right over the land. Therefore depending upon the nature and tenure of the land, several enactments were passed by the State Legislature throughout the country. The present Gulbarga where the schedule land is situated was part of State of Hyderabad. The law which was enacted to deal with these inam lands is The Hyderabad Abolition of Inams Act, 1954. The said Act, extended to whole of Hyderabad City and it was made applicable to all inams except inams held by or for the benefit of charitable and religious institution and inams held for rendering village service useful to the Government or to the village community including sethsendhi, neeradi and babulthan inams. Inam was defined as under:
" Inam" means land held under a gift or a grant made by the Nizam or by any 26 Jagirdar, holder of a Samsthan or other competent grantor and continued or confirmed by virtue of a muntakhab or other title deed with or without the condition of service and coupled with the remission of the whole or part of the land revenue thereon and entered as such in the village records and includes.-
(i) arazi makhta, arazi agrahar and seri inam; and
(ii) lands held as inam by virtue of long possession and entered as inam in the village records.
Provided that in respect of former Jagir areas, the expression inam shall not include such lands as have not been recognized as inams by Government after the abolition of the Jagirs."
13. Inamdar was defined as under:
"Inamdar" means a person holding an inam or a share there either for his own benefit or in 27 trust and includes the successor in interest of an indamdar, and .-
(i) where an inamdar is a minor or of unsound mind or an idiot, his lawful guardian;
(ii) Where an inamdar is a joint Hindu family, such joint Hindu Family.
14. Section 3 of the Act deals with Abolition and Vesting of inams and the consequences thereof. It reads as under:
" 3. Abolition and vesting of inams and the consequences thereof.-(1) Notwithstanding anything to the contrary contained in any usage, settlement, contract, grant, sanad, order or other instrument, Act, regulation, rules or order having the force of law and notwithstanding any judgment, decree or order of a civil, revenue or Atiyat Court, and with effect from the date of vesting, all inams to which this Act is made applicable under sub-section (2) of Section 1 of this Act shall be 28 deemed to have been abolished and shall vest in the State.
2. Save as expressly provided by or under the provisions of this Act and with effect from the date of vesting the following consequences shall ensue namely.-
(a) the provisions of all the Land Revenue Act, 1317 Fasli relating to inams and the provisions of the Hyderabad Atiyat Enquiries Act, 1952 and other enactments, rules, regulations and circulars in force in respect of Atiyat grants shall, to the extent, they are repugnant, to the provisions of this Act, not apply and the provisions of the Land Revenue Act, 1317 Fasli, relating to unalienated lands for purposes of land revenue, shall apply to the said inams;
(b) all rights, title and interest vesting in the inamdar, kabiz-e-kadim, permanent tenant, protected tenant and non-
protected tenant in respect of the inam 29 land, other than the interests expressly saved by or under provisions of this Act and including those in all communal lands, cultivated and uncultivated lands (whether assessed or not), wastelands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries, shall cease and be vested absolutely in the State free from all encumbrances.
(c) all such inam lands shall be liable to payment of land revenue.
(d) all rents and land revenue including cesses and royalties, accruing in respect of such inam lands, on or after the date of vesting shall be payable to the State and not to the inamdar, and any payment made in contravention of this clause shall not be valid.
(e) all arrears of revenue, whether as judi, quit-rent or other cess, remaining 30 lawfully, due on the date of vesting in respect of any such inam shall after such date, continue to be recoverable from the inamdar by whom they were payable and may, without prejudice to any other mode of recovery be realised by deduction thereof from the compensation amount payable to him under this Act..
(f) no such inam shall be liable to attachment or sale in execution of any decree or other process of any Court and any attachment existing on the date of vesting or any order for attachment passed before such date in respect of such inam, shall subject to the provisions of Section 73 of the Transfer of Property Act, 1882, cease to be in force.
(g) the inamdar and any other person whose rights have vested in the State under clause (b) shall be entitled only to 31 compensation from the Government as provided for in this Act.
(h) the relationship with regard to inam land as between the inamdar and kabiz-e-kadim, permanent tenant, protected tenant or non-protected tenant shall be extinguished;
(i) the inamdar, kabiz-e-kadim, permanent tenant, protected tenant, and a non-
protected tenant of inam lands and any person holding under them and a holder of an inam, shall as against the Government, be entitled only to such rights and privileges and he subject to such conditions as are provided for under this Act and any other rights and privileges which may have accrued to any of them in the inam before the date of vesting against the inamdar shall cease and shall not be enforceable against the Government or the inamdar.
32
3. Nothing contained in sub-sections (1) and (2), shall operate as a bar to the recovery by the inamdar of any sum which becomes due to him before the date of vesting by virtue of his rights as inamdar and any such sum shall be recoverable by him by any process of law, which, but for this act, would be available to him.
15. Section 4 provides for Registration of inamdars as occupants. It reads as under:
4. Registration of inamdars as occupants.- (1) Every inamdar shall, with effect from the date of vesting be entitled to be registered as an occupant of all inam lands other than.-
(a) lands set apart for the village community, grazing lands; waste lands, forest lands, mines and quarries; tanks, tank beds and irrigation works, streams and rivers;33
(b) lands in respect of which any person is entitled to be registered under Sections 5, 6, 7 and 8 of the Act;
(c) Lands upon which have been erected buildings owned by any person other than the inamdar;
which immediately before the date of vesting, were under his personal cultivation and which, together with any lands he separately owns and cultivates personally are equal to four and a half times the 'family holdings';
(2) No Inamdar shall be registered as an occupant of any land under sub-section (1) unless he pays to be Government as premium an amount equal to twenty-five times the difference between the judi or quit-rent, if any, paid by him and the land revenue payable in respect of such land. The amount of premium shall be payable in not more than ten annual instalments along with the annual land revenue and in default of such payment, shall 34 be recoverable as arrears of land revenue due on the land in respect of which it is payable.
(3) The inamdar shall be entitled to compensation from the Government as
provided for under this Act in respect of inam lands in his possession in excess of the time limit specified in sub-section (1) whether cultivated or not.
(4) Should the lands for the purpose of registration of inamdar as occupant be required to be resumed to make up the deficiency to the extent of 3 family holdings, the same shall be resumed under the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1950 in the following order:-
(i) firstly from out of non-inam lands;
(ii) secondly from out of uncultivated
inam lands other than those
specified in clauses (a) and (c) of
sub-section (1); and
35
(iii) thirdly from out of the Inam lands in the possession of his tenants and without prejudice to their tenancy rights in the following order.-
(a) from out of the lands of the
non-protected tenants;
(b) from out of the lands of the
protected tenants; and
(c) from out of the lands of the
permanent tenants."
16. In exercise of power conferred by Section 35 of the Act, the Government of Karnataka framed Hyderabad Inam Abolition Rules, 1958. Rule 5 of the said Rules reads as under:
"5. For the purpose of deciding claims under Sections 4, 5, 6, 7 and 8 as provided under Section 10, a Kabiz-e-kadim, a permanent tenant, a protected tenant or a non-protected tenant or Inamdar claiming to be registered as occupant under Sections 4, 5, 6, 7 or 8 as the case may be, shall, within 2 months from the date of publication of these rules in the Official Gazette, 36 apply to be the Tahsildar of the Taluk, or the Tahsildar specially appointed to receive such applications. The Tahsildar may for sufficient cause admit any application presented or sent after the said period of two months:
Provided that no application presented after the period of four months from the date of publication of these rules in the Official Gazette, shall be admitted by the Tahsildar."
17. Therefore it provided for filing of an application claiming grant of occupancy right to the Tahsildar, within a period of two months. The proviso provided that no application presented after the period of four months from the date of publication of the said rules in the Official Gazette, shall be admitted by the Tahsildar. The above Rules were published on 17.12.1958. The definition of Inams under the Act makes it clear that it is a case of personal Inam. The Act excluded the application to the Charitable Religious Institutions or to the Inams attached to village office. As contended by the learned counsel for the 37 applicants, if it was a personal Inam, the Inam vested with the Government under the said Act and an application for regrant should have been made within four months from the date of publication of the rules. Admittedly, no application is filed under the said Act and the Rules within the stipulated time and therefore whatever rights the Inamdar had under the Act stood extinguished. The land having vested with the Government, it became the land of the Government free from all encumbrances.
18. If the grant is to be held in favour of a Dargha, the Religious Institution, then the law, which is applicable to such Religious Institution is the Karnataka (Belgaum and Gulbarga areas) Religious and Charitable Inams Abolition Act, 1973. The said enactment makes it clear that it extends to the Belgaum and Gulbarga areas of the State Government.
19. Section 4 of the Act provides for Registration of the land vested in favour of permanent tenants as occupants 38 of certain conditions; Section 5 of the Act deals with protected tenancy; Section 6 deals with other tenancy and Section 7 deals with grant of land in favour of Pujari, archak, mulla, kazi, mutawalli, muthsaddi, priest or the holder of a similar office by whatever name called or to a person rendering any service in such institution and personally cultivating for a continuous period of not less than three years prior to the appointed date by contributing his own physical labour and enjoying the benefits of any land comprised in the Inam of such Institution without paying rent as such in money or in kind to that institution in respect of such land; and Section 8 deals with what are the properties, which could be granted under the Act and what are the properties which should not be granted. This enactment did not come into force at all.
20. The third enactment on which reference is placed is the Karnataka Certain Inams Abolition Act, 1977. This legislation was passed by the Karnataka Legislature 39 providing for abolition of certain personal Religious and Charitable Inams in the State. This legislation was passed by the Karnataka Legislature. The reason for this enactment is to provide laws for abolition of certain personal religious and charitable Inams in the State, which are already in force. But in certain areas in the State, certain categories are still existing. In other words this enactment was passed to cover the Inams, which are not covered under the existing law. In respect of such lands also in the public interest, the Karnataka Legislature wanted to abolish such Inams. Therefore, this Act came to be passed. Section 2 of the Act deals with application of this enactment. It is categorically stated that this Act shall apply to all Inams including Inams in enclave villages other than those referred to in the said provision. In the Section, they have set out various Inams Abolition Act and one such being the Hyderabad Abolition of Inams Act, 1955 (Hyderabad Act VIII of 1955) at serial number 5. Therefore, it is clear that if an Inam fell within the scope of the aforesaid 11 Inams Abolition Acts stipulated 40 under Section 2, then this Act has no application. If there exists some Inams, which are not vested with the Government by virtue of the provisions of these 11 enactments, that Inam also was abolished and that land stood vested with the Government free from all encumbrances. Though Karnataka (Belgaum and Gulbarga Areas) Religious and Charitable Inams Abolition Act, 1973 was enacted to acquire the lands belonging to the religious institutions, as the said Act did not come into force at all, the lands which fell within the scope of the said Act, now falls within the scope of Karnataka Certain Inam Abolition Act, 1977. The said enactment came into force from 5th June 1978 i.e., the appointed day. It also defined `Inam', `Inamdar', `Inam land' or `Inam village', `Personal Inam' and `Religious or Charitable Inam' as under:
(e) "Inam" includes an inam village and a minor inam, a jagir, whether personal, religious, charitable or otherwise;
(f) "Inamdar" means,-41
(i) in the case of a personal inam, a person holding in trust or owning for his own benefit an inam village or a share therein and includes the successors in interest of an inamdar; and
(a) where an inamdar is a minor or of unsound mind or an idiot, his guardian, committee, or other legal curator;
(b) where an inamdar is a joint Hindu family such joint Hindu family; and
(ii) in the case of a religious or charitable inam, the religious or charitable institution owning an inam;
(g) "Inam Land" or "Inam village" means a land or village, as the case may be, held as in inam in trust or owned by a person for his own benefit;
(k) "Personal Inam" means a grant of a village or land with total or partial exemption from the payment of land revenue made to a person and entered in the land records as an inam, other than a `devadaya' or `dharmadaya' and does not include religious or charitable inam;42
(m) "Religious or Charitable Inam" means grant of a village, portion of a village or land with total or partial exemption from the payment of land revenue made to or for the benefit of a religious or charitable institution.
Explanation: If an question arises whether any grant is a personal inam or a religious or charitable inam such question shall be referred to the State Government whose decision shall be final;
`Person' also is defined as under:
(j) "Person" includes a religious or charitable institution and in the case of a joint Hindu family such joint Hindu family.
21. Section 4 of the Act deals with Abolition, vesting of inams and the consequences thereof; Section 5 deals with Right to be registered as occupants; Section 6 made it very clear as to which are the lands, which are not to be registered; Section 7 also deals with vesting of buildings; Section 11 deals with Procedure for registration as an 43 occupant. If it is a personal Inam it is covered by the Hyderabad Abolition of Inams Act, 1954. If it is a Religious Inam, it is covered by the Karnataka Certain Inams Abolition Act, 1977.
22. It is in this background, let us look at the admitted facts in this case. Except the assertion that the King of Chalukya gave this property as an Inam to Hazarat Hisamuddin Teg Barhana, there is no record evidencing the same. Of course it is too much to expect the applicants to produce any title deed of this type. Therefore, they are relying on Muntakhab issued by the Revenue Board of Government of Hyderabad. That is the origin of the title. The English translation of the said Muntakhab is produced by the applicants, which reads as under:
"ENGLISH TRANSLATION OF URDU MUNTAKHAB, Issued by the Revenue Boad (sic.) of Govt. of Hyderabad (REV.SECTION) 44 Office of the Deputy Commissioner Gulbarga.
Register No.38 of 131 5 P
1. No. of institution, year etc. : Inst. No. (X) Year (X)
2. Sadar No. : 5237
3. Sub-No. : No.12, decision of Subedari, 1317F.
4. Name Taluka & Dist. : Taluka Gulbarga Dist.
Gulbarga.
5. Name of the person whose : Syed Shah Sahob name entered in Govt. Mohammed Mohamadul Papers of Inam patraka Hussaini Sajjada, Roza Teg Brahana, Caste Muslim, age 43 years, Occ: Sajjadgi, R/o Gulbarga.
6. Name of present claimant : Syed Shah Saheb Mohd.
and other father name, Mohammadul @ Syed
age , Occ : r/o Shah Badesha Mohd.
Mohamadul Hussaini
Sajjada Roza Teg
Brahana Caste Muslim
Age 43 years,
Occ: Sajjadgi
r/o.Gulbarga.
7. The relation of present : Main Ancester.
claimant with the person
whose name is entered in
Govt. records.
8. Details of Mash : Inam lands under
Mahboob Sagar Tank
45
Gulbarga, measuring
36 acres
9. Condition for grant : For the Graveyards of
the family of Hazrat Teg
Brahana Saheb Quda.
10. Final Order : The inami land as
mentioned in col. No.8 is
Sannadi and the Sanadi
Is old one, From the
Endorsement of 3rd Talukdar it is evident that the Inami land due to Govt. necessity has been taken forcibly by the Govt. The oral evidence is in favour of claimant. The interference is proved. Fau chader land which comes to 22 acres 20 gts be continued purpetually under the Darga Hazrat Shah Hissamuddin saheb Teg Brahana.
Dated 12th Arulbethisht, 1317.
23. A reading of the aforesaid document makes it clear that the Inam lands are situated in Mahboob Sagar, Tank Gulbarga measuring 36 acres. The condition of the grant is for the graveyards of the family of Hasrat Teg Brahana Saheb Quda. The inami land as mentioned in col. No.8 is Sannadi and the Sannadi is old one, from the endorsement of 3rd Talukdar it is evident that the Inami land due to Government necessity has been taken forcibly by the 46 Government. The oral evidence is in favour of claimant. The interference is proved. Fau chader land which comes to 22 acres 20 guntas be continued perpetually under the Darga Hazrat Shah Hissamuddin saheb Teg Brahana. It is dated 12th Arulbethisht, 1317. Therefore, it is clear that it is not a personal grant in fvour of the legal heirs of Hazarat Hisamuddin Teg Barhana as claimed by the applicants. It is granted to Dharga Hazarath Shah Hissamuddin Saheb Teg Brahana to be enjoyed perpetually. The total extent of land granted is 22 acres 20 guntas. If a land is given to a Dahrga a Religious Institution, it is irrevocable and therefore, it was made clear that it shall be continued perpetually in the name of the said Dargha. If this is the foundation of the claim of the applicants, their case of personal inam fails and therefore what they have set out in the statement of objections to these proceedings is correct and we have to proceed on that basis.
47
24. Once this land is granted to Dargha, it is in the management of Sajada Nashin. That is the status, these applicants are claiming. Then they cannot put forth the personal claim, which is in direct conflict with the said Muntakhab and the property of the Dargha.
25. The application is filed under the provisions of the Karnataka Certain Inams Abolition Act, 1977. As set out earlier, the land in question is situated in the heart of Gulbarga town.
26. Section 5 of the Karnataka Certain Inams Abolition Act, 1977 deals with the Right to be registered as occupants. It reads thus:
5. Right to be registered as occupants.- Save as otherwise provided in this Act, with effect from and or the appointed date ,-
(1) every tenant of the inamdar or holder of a minor inam shall be entitled to be registered 48 as an occupant of lands in respect of which he was a tenant immediately before first day of March, 1974 ;
(2) where the inamdar is an institution of religious worship, a person,-
(i) rendering religious service in or
maintaining the institution as a
pujari, archak or the holder of a
similar office by whatever name
called, or
(ii) rendering any service in such
institution, and personally cultivating for a continuous period of not less than three years prior to the first day of March, 1974, by contributing his own physical labour or that of the members of his family and enjoying the benefits of any land comprised in the inam of such institution without paying rent as such in money or in kind to that institution in respect of such land, shall be entitled to be 49 registered as an occupant of such land;
(3) every inamdar including the holder of a minor inam shall be entitled to be registered as an occupant of all lands it was personally cultivating immediately before the said date.
27. Section 6 provides what are the lands which cannot be registered under the Act. It reads thus:
6. Certain lands not to be registered: No holder of a minor inam and no inamdar shall be entitled to be registered as an occupant of,-
(i) communal lands, uncultivated lands, waste lands, gomal lands, forest lands, tank beds, mines, quarries, rivers, streams, tanks and irrigation works;
(ii) lands on which buildings owned by any person other than such holder of minor inam are erected.50
28. Section 11 deals with the procedure for registration as an occupant:
11. Procedure for registration as an occupant.- (1) Every person entitled to be registered as an occupant under this Act shall make an application to the Tribunal constituted under the Karnataka Land Reforms Act, 1961 on or before 31st day of March, 1991. Such application shall be disposed of by the Tribunal as if it is an application made under the said Act:
(2) x x x x x Provided the where the inam is an enfranchised inam, such application by the inamdar including holder of minor inam shall be made to the Tahsildar on or before the 31st day of March, 1991. The application shall be decided by the Tahsildar after issuing individual notices to the concerned inamdars and after such verification and enquiry held in such manner as may be prescribed.51
29. The extract from the office of the Deputy Commissioner, District Gulbarga bearing registration No.13 of 1315 Fasli, shows that the land in question originally stood in the name of Syed Shah Sahib Mohammed Mohammodul Hussaini, Occupation. Sajjadgi, Resident of Gulbarga. In the column of the present claimant, it is mentioned as Syed Shah Saib Mohammed Mohammadul Hussaini. In the column of relationship of the present claimant with the person whose name is entered in the Government records, it is mentioned as ancestral. Details of the Kasht shows inam land under Mehboob Sagar Tank, Gulbarga measuring 30 acres. Condition of grant is for the purpose of graves of the family of Hazrat Tegh-e-Barhana Saheb. In the final orders, it is stated as under:
"The Inam land entered in Col.(8) is Sindhey and the saned is a very ancient one. It is evident from the endorsement of the III Talukdar that the said land has been forcibly taken away from time to time on account of account of Govt. purposes. The oral evidence supports the 52 claimant and it is proved that the same is ancient. Hence 1/4th ghomaj land corresponding to 22 acres - 20 guntas, be continued and released permanently under the Dargah Hazrat Shah Hissamuddin Saheb Tegh-e-Barhane Dated: 12th Urdibehast 1317 fasli
--------------------------------------------------------------------------- 4475 Execution No. of the District Office, Gulbarga This Muntakhab along with a copy is sent to the First Talukadar, Dist. Gulbarga and it is to state that he should comply according to the orders. The executed Muntakhab be sent and the date of conformation of the claimant be intimated to this office.
Copy hereof is sent to the Revenue Dept. for necessary entries into the Records.
Dated: 5th Asur, 1318 Fasli on 24th Ramzan 1326 Hijri Sd/-
53Secretary, Revenue Department Government of Hyderabad.
30. From the aforesaid order, it is clear that the said land has been forceably taken away from time to time on account of Government purpose. Then we have the notification issued by the Office of the Karnataka Board of Wakfs dated 16th July 1974. Sl.No.237 of the said notification reads as under:
237 DargaHazrath E Old jail compound Sri Abdul Wahab 35,000 26.23-26.33 -
Tej Barana W Road and tank Open Sidique S/o Md. Heriditory -
(Sunni) Jagat N space & P.W.D. Road Hussain Sidique
Tank S Govt. Road and Tank R/o Badkal Cash grant through
Gulbarga Wakf 22.5x27.2 Gulbarga vasika No.7345 of 9th
Compound of Darga Mahar 1353 F. for
including room Rs.26-23 paisa
100x69 Trangle open
space of land towards
worth
31. The case of the State is that the original Sy.No.1 of Badepur Village and other survey numbers comprised in an area of about 40 acres was in existence for about more than 100 years as the Central Jail building and its garden. 54 The Central Jail building and its garden were transferred by the Government of Ex-Nizams to the Government of Mysore after independence. The said Central Jail building and its garden are under the control of the Public Works Department. The Government of Karnataka demolished the Central Jail Building to convert the area into a Modern Super Market, in the area comprising 40 acres referred to in the Government Order bearing No.PWD 78 BMD 64, Bangalore Dated 27.07.1964. The Government constituted a committee under the Chairmanship of the Divisional Commissioner, Gulbarga to look into the matter and to implement the above said scheme. The area of Central Jail building and Jail Garden of 40 acres consisted of Sy.Nos.1, 2 and 3 of Badepur Sy.No.12 and 13 of Brahmapur. According to the Government Order, the layout was prepared, action was taken to sell out the commercial plots in the public auction conducted on various dates. During the period of said auctions nobody came forward and questioned as to the authority of the Government. In the light of the aforesaid 55 circumstances, the property bearing Sy.No.1 of Badepur Village measuring 5 acres 3 guntas is not at all an agricultural land and the revenue records clearly indicate that the said land consisted of Central Jail and it is a Government land.
32. In the light of the aforesaid material particulars available on record, now we have to look into the provisions of the Act. In the Act, 'land' is not defined. Sub-section (2) of Section 3 makes it clear that the words and expressions used, but not defined in this Act, shall have the meaning assigned to them in the Land Revenue Act or the Karnataka Land Reforms Act, 1961.
33. 'Land' is defined under Section 2(14) of the Land Revenue Act, 1964 as under:
" "Land" includes benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth, and also shares in, or charges 56 on, the revenue or rent of villages or other defined areas."
34. 'Land' is defined under Section 2(18) of the Land Reforms Act, 1961 as under:
2(18) "Land" means agricultural land, that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, pasture land, plantation and tope but does not include house-site or land used exclusively for non agricultural purposes.."
35. Section 4 of the Karnataka Certain Inams Abolition Act, 1977 which deals with abolition and vesting of Inams in the State and its consequences thereof. It provides that notwithstanding anything contained in any contract, grant or other instrument or in any decree or order of court or in any other law for the time being in force, with effect from and on the appointed date, the inam tenure of all inams 57 and minor inams to which this Act applies under section 2 shall stand abolished. Sub-section 2(b) of the Act, declares that all rights title and interest vesting in the inamdar including those in all communal lands, cultivated lands, uncultivated lands, whether assessed or not, waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries, and ferries shall cease and be vested absolutely in the State Government free from all encumbrances. Sub-section 2(c) provides that inamdar shall cease to have any interest in the inam other then interests expressly saved by or under the provisions of this Act.
36. Section 5 deals with right to be registered as occupants. A right to be registered as occupant is conferred on every tenant of the inamdar or holder of minor inam. If the inamdar is an institution of religious worship, a person rendering religious service in or maintaining the institution as a pujari, archak or a holder of similar office by whatever 58 name called or rendering any service in such institution and personally cultivating for a continuous period of not less than three years prior to the first day of March 1974, by contributing his own physical labour or that of the members of his family and enjoying the benefits of any land comprised in the inam of such institution without paying rent as such in money or in kind to that institution in respect of such land, shall be entitled to be registered as an occupant of such land. Further it is made clear that every inamdar including the holder of a minor inam, shall be entitled to be registered as an occupant of all lands which was personally cultivated by him immediately before the said date.
37. The word 'tenant' has not been defined under the Act. Therefore we have to fall back upon the definition of 'tenant' as contained in Land Revenue Act as well as the Land Reforms Act.
59
38. Section 2(34) of the Land Reforms Act, defines 'tenant' as under:
2(34) "Tenant" means an agriculturist who cultivates personally the land he holds on lease from a landlord and includes-
(i) a person who is deemed to be a
tenant under Section 4;
(ii) a person who was protected from
eviction from any land by the
Karnataka Tenants (Temporary
Protection from Eviction) Act,
1961;
[(ii-a) a person who cultivates
personally any land on lease
under a lease created contrary to
the provisions of Section 5 and
before the date of commencement
of the Amendment Act;
(iii) a person who is a permanent
tenant; and
60
(iv) a person who is a protected
tenant.
Explanation.- A person who takes up a contract to cut grass, or to gather the fruits or other produce of any land, shall not on that account only be deemed to be a tenant."
39. Section 2(34) of the Land Revenue Act defines 'tenant' as under:
2(34) "tenant" means a lessee, whether holding under an instrument or an oral agreement and includes.-
(i) a person who is or is deemed to be a
tenant under any law for the time
being in force;
(ii) a mortgagee of a tenant's rights with
possession; or
(iii) a lessee holding directly under the
State Government or a Local
Authority or body corporate;
61
40. Therefore, if an applicant claims occupancy rights as a tenant, he should be cultivating the land. If inamdar is an institution of a religious worship and if a person is rendering religious service as a pujari, archak and holder of a similar office, he is entitled to be registered as an occupant. Persons who are rendering service other than religious service are also entitled to be registered as occupant, provided they are personally cultivating for a continuous period of not less than three years prior to the first day of March, 1974. If the inamdar other than an institution of religious worship wants the occupancy rights to be granted, he must be personally cultivating immediately before the said date. It is only the persons who are rendering religious service, who can be registered as occupants even if they are not personally cultivating the land. All other categories of applicants should satisfy the test that they are personally cultivating the land. The land should be as defined under the aforesaid two enactments.
Section 6 of the Act, makes it clear that no holder of a minor 62 inam and no inamdar shall be entitled to be registered as occupant of communal lands, uncultivated land, waste lands, gomal lands, forest lands, tank beds, mines, quarries, rivers, streams, tanks and irrigation work. Similarly, if the lands on which building owned by any person other than such holder of minor inam are erected, he is not entitled to be registered as occupant.
41. In so far as vesting of the building is concerned, Section 4 of the Act, deals with vesting of the lands. Whereas, Section 7 of the Act, deals with vesting of buildings. Every building other than a building referred to in sub-section (2) situated within the limits of a minor inam or an inam which was owned immediately before the appointed date by the holder of a minor inam or the inamdar, as the case may be, shall with effect from such date vest in the holder of minor inam or the inamdar. The only exception is every private building situated within the limits of an inam shall, with effect from the said date, vest in the person who 63 owned it immediately before that date. In other words, in the inam land, if the inamdar has constructed a building, such building does not vest in the State and it vests in the inamdar.
42. In the background of these facts and the statutory provisions, we have to see what is the claim put forth by the applicant. The applicant is claiming occupancy right in his personal capacity. The applicant is not seeking registration of occupancy rights in favour of the religious institution as Sajjada Nasheen of the said institution, which is inamdar as is clear from the material on record. The specific case pleaded by the applicant is that the land is given in their personal capacity. Therefore the land is neither given to the religious institution nor the religious institution is not an inamdar. It is a personal inam to the applicant. The entry in the record clearly demonstrates that the land in dispute is not a cultivable land. Long back, the Government has taken forceably the possession of this land. 64 They constructed a Jail. There was no protest. The Jail was in existence for nearly 100 years. The said Jail was demolished. In 1964, a modern super market was constructed. Plots are auctioned. There is no sign of agricultural activity in any portion of the land in question. In terms of the notification issued by the Wakf Board, there is Dargha. The portion where the Dargha exists constitutes a building. It is not vested under the Act with the Government and it vests with the inamdar in terms of Section 7 of the Act. Section 6 makes it clear that no registration can be made in respect of uncultivated land. Therefore, neither the tenant nor the inamdar is entitled to registration of the occupancy right in respect of any portion of the uncultivated land. The building owned by the inamdar shall vest with him, the condition precedent being, the building should be owned by the inamdar. First there was a building which was used as a Jail. It is not owned by inamdar or applicant. Therefore the said building did not vest with the applicant. After demolition of the said building 65 in the year 1964, a super market is constructed again by the Government and therefore that super market is not a building owned by the inamdar. As such, it did not vest with him. If in the land, after public auction in the year 1964, if any private building is constructed in the inam land, the said land vests with the person who is owning the building, subject to his satisfying the conditions in sub- section (3) of Section 7, but the inamdar is not entitled to the said building also. In so far as the vacant land, if any available, it should be an agricultural land. Then the condition stipulated in Section 5 is to be satisfied. It is not a case of applicant that he is a tenant under the inamdar. It is his specific case that he is an inamdar. Admittedly, he is not personally cultivating the land immediately prior to the date of vesting. If he is not personally cultivating the land, he is not entitled to be registered as occupant. The land is not being capable of cultivation.
66
43. Under these circumstances, seen from any angle, the applicant is not entitled to be registered as occupant. As the specific case sought to be made out is that it is a personal inam and the provisions of the Act is not attracted, then the case is covered by Hyderabad Inams Abolition of Inams Act, 1954, under which he has not filed any application. As the present application is not filed as a tenant of the inamdar or as an inamdar claiming occupancy rights in favour of the religious institution, the question of granting occupancy right under the Act would not arise. The Chairman of the Land Reforms Tribunal, rightly held lthat the land is a Government land. It is not an inam land and it cannot be granted in favour of the applicant. However the four members of the Tribunal without assigning any reasons, have ordered it to be granted in favour of the applicant, which is ex-facie illegal and is liable to be set aside. Accordingly, it is hereby set aside.
67
44. After the grant of the land, the applicants made an application to the Assistant Commissioner for grant of permission to sell. On 27.03.2004 permission was granted. On 29.03.2004 they have sold three bits of land measuring 12 guntas in favour of three purchasers, who are the petitioners in the connected three writ petitions. On the basis of the registered sale deed, they got the mutation entries made in their favour. But the Government realised the mistake they have committed. Therefore, on 16.07.2004 they have passed an order cancelling the permission granted. Now the question is whether the order cancelling the permission is valid. In the facts of the case, it is purely academic. The grant of permission, the purchase of the land under the registered sale deed, the order canceling the permission granted are all hit by the Doctrine of lis pendence. The validity of all those three orders depends on the ultimate outcome of the first two writ petitions. Once the said writ petitions are allowed, the order passed by the Land Tribunal is set-aside, the permission granted by the 68 Assistant Commissioner, the sale deed in favour of the three purchasers and the order of cancellation has to fall to ground without any basis. Therefore, the question of setting aside the said orders would not arise because the validity of all those orders and transactions is depending on the question whether the order passed by the Land Reforms Tribunal granting occupancy rights was valid or not. Once the order passed by the Land Reforms Tribunal is set-aside, all those orders and documents are set at naught and have no value in the eye of law and is nonest in the eye of law.
45. It is pertinent to note that in the schedule land there is a Dargha. There was a jail for a period of 100 years. After dismantling of the jail, a super market has come into existence and the entire super market has been given on rent to various persons and the remaining extent of vacant land is the subject matter of these proceedings. There is no material on record to show that it is an agricultural land, anybody has cultivated the land and mutation entry 69 produced in this case do not show the cultivation of the land by the applicants. On the contrary, the record shows non- payment of land revenue. The Government forfeited the land i.e., it became phoda and the Government is using the land for more than 100 years for a public purpose. Even the Muntakhab on which reliance is placed clearly shows that this land is to be continued in the name of the Dharga perpetually. Therefore, the question of granting occupancy rights in respect of this property in favour of the applicant would not arise.
46. For the aforesaid reasons, I pass the following order:
(a) W.P.Nos.29945/2004 and 43747/2004 are hereby allowed;
(b) The impugned order of the Land Reforms Tribunal granting occupancy rights is hereby set-aside;70
(c) W.P. Nos. 44097/2004, 44098/2004 and 44099/2004 are dismissed.
Parties to bear their own cost.
Sd/-
JUDGE ksp/sps/-