Indian Kanoon - Search engine for Indian Law

2. The High Court granted the writ and the State of Hyderabad appeals.

3. The respondent's case is that the Dargah contains the tomb of one of his ancestors and that he and his ancestors have been the hereditary Sajjadas and Mutawallis of the Dargah for generations. In the year 1914, when the respondent's brother Syed Hussain was in possession, the Ecclesiastical Department of the State stepped in and entrusted the supervision of the Dargah to one Azam Ali.

He was removed in 1920 and the Ecclesiastical Department took over the supervision under a Firman of the Nizam which directed the Department to supervise the Dargah until the rights of the parties have been enquired into and decided. The respondent states that these rights were investigated by the civil Courts. The matter went up to the High Court and the decision all through was in his favour. Despite this he has not been given possession and he seeks a 'mandamus' against the Director and asks that the Director be ordered to hand over the management and possession to him.

4. The High Court granted his prayer, Shripat Rao, J. held that the Firman of the Nizam ceased to be valid after the Constitution, therefore, the possession of Government after that date was unlawful. He also held that the Ecclesiastical Department took possession from the respondent and so it was bound to hand the Dargah back to him. The other learned Judge Mir Siadat Ali Khan, J. held that the Firman had served its purpose, therefore, as the Dargah was not wakf property, the supervision of the Department should be brought to an end.

He also said that his descent from at least Syed Mir Saheb, his grandfather, was proved and that it was also established that Syed Mir Saheb was a hereditary Sajjada of the Dargah. All this is, in our opinion, beside the point. The petition and the appeal can be disposed of very shortly on another ground.

6. We do not intend to say anything about the facts of title and possession lest it prejudice future litigation, should there be any. We will assume, without deciding, that all that the respondent says about his hereditary rights and his possession is true. But whether he was in possession or not, whatever rights to possession he may have had were held in abeyance by the Firman of 31-12-1920 and there is no subsequent order of the Civil Courts removing the bar.

Therefore, even if we accept all the respondent's facts, the position would still be that at the date the Constitution came into force he had no right to immediate possession; the utmost he had was a right to be restored to possession if and when he established his rights in a Court of law.

13. The High Court has relied on a decision of this Court in -- 'Ameerunnissa Begum v. Mahboob Begum', : [1953]4SCR404 , and has held that the Firmans of the Nizam that conflict with the Constitution are 'ultra vires'. But the learned Judges have failed to observe that in that case the Firman was issued after the Constitution and not before. But it was argued that even if that decision does not apply there are others that do and they hold that a law which would have been bad if it had been passed after the Constitution ceases to have effect after that date.