Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD BENCH BENCH AT AURANGABAD AT AURANGABAD
PETITION NO. 2462 OF 1996
WRIT PETITION NO. 2462 OF 1996 WRIT WRIT PETITION NO. 2462 OF 1996
1. Mohammad Khairuddin s/o Mohd.
Habibuddin, age 40 years,
occupation Inamdar and
Government service, at present
residing at Taluka Majalgaon,
District : Beed. ...Petitioner
Versus
1. Moinuddin s/o Pachulal Shaikh,
age 30 years, occupation
agriculture, residing at and
post Takli Bardapur,
Tq. and Dist. Latur,
2. Fattu s/o Nabi Saheb Shaikh,
age 55 years, occupation and
r/o as above,
3. Subabai w/o Bali Shinde,
age 50 years, occupation and
r/o as above,
4. Marathwada Wakf Board,
through its Secretary,
at Panchakki, Aurangabad. ...Respondents
WITH WITH WITH
WRIT PETITION NO. 2464 OF 1996 WRIT WRIT PETITION NO. 2464 OF 1996 PETITION NO. 2464 OF 1996
1. Mohammad Khairuddin s/o Mohd.
Habibuddin, age 40 years,
occupation Inamdar and
Government service, at present
residing at Taluka Majalgaon,
District : Beed. ...Petitioner
Versus
1. Shahji s/o Dadarao Uphade,
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age 55 years, occ. agriculture,
r/o at and post Takli Bardapur,
Tq. and Dist. Latur,
2. Gopinath s/o Sadu Khatal,
age 50 years, occ. and r/o
as above,
3. Bhaguram s/o Santok Yellam,
age 50 years, occ. and r/o
as above,
4. Marathwada Wakf Board,
through its Secretary,
at Panchakki, Aurangabad. ...Respondents
.....
Mr.M.M.Patil (Beedkar), advocate for the petitioners.
Mr.S.S.Choudhary, advocate for respondent nos.1 to 3.
Mrs.A.N.Ansari, advocate for respondent no.4.
In both Writ Petitions.
.....
CORAM : P.R.BORKAR, J. CORAM CORAM : P.R.BORKAR, J. : P.R.BORKAR, J.
DATE OF RESERVING DATE DATE OF RESERVING OF RESERVING
THE JUDGMENT : 1.7.2008 THE THE JUDGMENT : 1.7.2008 JUDGMENT : 1.7.2008
OF PRONOUNCING
DATE OF PRONOUNCING DATE DATE OF PRONOUNCING
THE JUDGMENT : 4.7.2008 THE THE JUDGMENT : 4.7.2008 JUDGMENT : 4.7.2008
ORAL JUDGMENT : ORAL ORAL JUDGMENT : JUDGMENT :
1. These two petitions present almost identical
questions of fact and law and, therefore, can be
conveniently disposed of with the common judgment. In
both these petitions the orders passed by the Additional
Commissioner, Aurangabad Division, Aurangabad in Case
No. 1993/WTN/A/6 and Case No. 1993/WTN/A/7, decided on
14.9.1994, which thereby confirmed the orders passed by
the Deputy Collector (L.R.) Latur in Case No.
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92/TNC/CR/66 and Case No. 92/TNC/CR-67, decided by
common judgment on 30.11.1992 are under challenge. Both
authorities allowed the applications made by present
respondent nos. 1 to 3 in both matters for abolition of
service inam in respect of lands Survey No.112
(corresponding Block No.265) and Survey No.113
(corresponding Block No.264) of village Takli Bardapur,
Taluka Latur and declaring respondent nos. 1 to 3 as
occupants of said lands under the provisions of the
Hyderabad Abolition of Inams and Cash Grants Act, 1954..
2. Thus the challenge is to the orders of abolition
of service inam and declaring respondent nos. 1 to 3 as
occupants of the abovesaid lands and to grant them
occupancy certificates under the provisions of the
Hyderabad Abolition of Inams and Cash Grants Act, 1954
(hereinafter referred to as, "the Abolition of Inams
Act").
3. It is argued before this Court that the lands in
question were inam lands. The present petitioner who
was original opponent was Inamdar. The Inam was not
Madad Mash inam. The same could not have been
abolished, as it was service inam land and the orders
passed by both authorities are illegal and not based on
the evidence on record.
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4. Section 1 (2)(ii) of the Abolition of Inams Act
is as follows :
" 1. Short title, extent and commencement :-
(1) ........ .......
(2) It extends to [the Hyderabad area of the
State of Maharashtra] and shall be applicable to
all inams except -
(i) inams held by or for the benefit of
charitable and religious institutions;
(ii) inams held for rendering village service
useful to the Government or to the village
community including sethsendhi, neeradi and
balutha inams.
......... ....... "
Thus it is argued that the nature of inam involved in
the present case is such that it could not have been
abolished under the Abolition of Inams Act.
5. Shri S.S.Choudhary, advocate appearing for
respondent nos. 1 to 3 argued that under Section 2(c)
’Inam’ is defined as follows :-
" 2. Definition.
(a) ....... ..............
(b) ....... ..............
(c) ’Inam’ means land held under a gift or a
grant made by the Nizam or by any Jagirdar,
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holder of a Samasthan or other competent grantor
whosoever, whether subject to the sovereignty of
the Nizam or not and continued or confirmed by
virtue of a muntakhab or other title deed, with
or without the condition of service and whether
or not coupled with the remission of the whole or
part of the land revenue thereon and entered as
such in the village records and includes :-
......... ........... "
Shri Choudhary, advocate stated that the present
respondent nos. 1 to 3 are Kabiz-e-kadim as they were
holders of inam land, other than Inamdars, who were in
actual possession of the property since prior to 1950
and as such they would be entitled to occupancy
certificate as they were in possession of the property
on the date appointed under Section 3 of the Abolition
of Inams Act. The relevant date is 1.7.1960.
6. It is argued that the Deputy Collector has come
to a conclusion that in the present case the inam is not
granted for religious institution like Dargha, Masjid or
Mosque, but it is for rendering services of Kazi (Kazat)
to the particular community service. It is argued
before this court that this inference that inam was for
rendering service of Kazi (Kazat) to the particular
community service is totally wrong and it is not the
case of anybody. My attention was drawn to first para
of original applications filed by respondent nos. 1 to
3 to the Collector for abolition of inam and for issuing
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occupancy certificate to them. In the first para it is
stated that the lands were formerly granted to one Mohd.
Khairuddin s/o Hapujoddin for rendering service of Niyaj
Janab Rasool Karim Sallela Alicoa Salam in the year 1305
Fasli and the Government of Nizam has issued one Sanad
known as Muntakhab in the name of Mohammad Khairuddin.
The applications are at Exh. ’A’ with the petitions.
It is further mentioned in paras 4 and 5 so also in
prayer clause that the land is a service inam land.
7. Mrs. Ansari, advocate also drew my attention to
copy of Muntakhab produced in the Trial Court and stated
that the purpose of grant of inam was Niyaj Janab Rasool
Karim Sallela Alicoa Salam and for this purpose inam of
180 Bigha was granted. Thus copy of Muntakhab shows
that the inam was not for performing duties of Kitabat
Kazi.
8. Shri Patil, advocate for the petitioner and Mrs.
Ansari, advocate for respondent no. 4 also relied on
the V.F. 7/12 extracts produced on record. Kabjedar
column show words, ’Niyaz-e-Rasool Khidmatgar’ and then
there are names of Inamdar. So it is argued that the
basis on which the Deputy Collector or the Additional
Commissioner had passed orders was wrong. It was
incorrect reading of the documents on record.
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9. It is further argued that the names of respondent
nos. 1 to 3 who were claiming to be tenants were not
shown in ownership column of 7/12 extract or Pahani
Patrak of the year 1959-60 or 1960-61 as mentioned by
the Deputy Collector. At this stage, learned advocate
for respondent nos. 1 to 3 Shri Choudhary argued that
the names of the predecessor-in-title of respondent nos.
1 to 3 are in other rights column. So fact remains that
they are not in ownership column as stated by the Deputy
Collector in his order. The names of respondent nos. 1
to 3 or their predecessor-in-title are not in Pahani
Patrak. There is only mention as ’Niyaz-e-Rasool
Khidmatgar’ and Habibuddin Mahaboobuddin as Inamdar and
names of his heirs in Kabjedar column.
10. It is pointed out that respondent nos. 1 to 3
have produced a list of protected tenants on record, but
it is argued by learned advocate for the petitioner that
the Deputy Collector and the Additional Commissioner
have not considered the foot note. It is specifically
mentioned in the list of protected tenants at the foot
that certificates were not issued to persons at Sr.
Nos. 1 to 13 as they were inam lands. However,
certificate are issued to the persons at Sr. Nos. 14
to 16. The lands in dispute are in between at Sr. Nos.
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1 to 13 in respect of which no certificate was issued.
It was a list prepared under Section 38E of the
Hyderabad Tenancy and Agricultural Lands Act, 1950
declaring the ownership rights of tenants as on
1.2.1957. The list is regarding Takli Bardapur, Taluka
Latur. So it is argued that the respondent nos. 1 to 3
are not protected tenants in view of the foot note.
11. Mrs. Ansari, advocate also pointed out that
though the Abolition of Inams Act came in force in the
year 1954, no application was given by respondent nos.
1 to 3 till the year 1991.
12. It is further argued that in this case respondent
nos. 1 to 3 concealed material facts from the Deputy
Collector and the Additional Commissioner while filing
application for granting them occupancy rights and it is
the order passed by the Additional Commissioner in Case
No. 75/REV.A.75 decided on 24.1.1990 produced at Exh.
’D’ with the petitions. That was a matter of forfeiture
of inam in respect of properties involved in these two
matters. The Additional Commissioner in his order
observed that the lands were service inam lands, the
Tenancy law is not applicable to these lands and,
therefore, contention of present respondent nos. 1 to 3
that they were declared owners (as tenants) was wrong
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and, therefore, the appellants have no right to remain
in possession of these lands nor entries of their name
have any sanctity. The suit lands are service inam
lands, as is evident from the 7/12 extract and
succession enquiry under Section 5 of the Hyderabad
Atiyat Inquiries Act, which is pending before the Deputy
Collector on the application of heirs of earlier
Inamdar, deceased Habibuddin Mehboobuddin.
13. So with aforesaid observations the Additional
Commissioner has further observed that since those were
service inam lands, the said lands were attached and
taken into Government supervision. It is not disputed
that the said lands are taken into custody by the
Government and are given on Eksal Laoni (for yearly
cultivation). It is argued that this order of the
Additional Commissioner has attained finality and the
observations reproduced above clearly indicate that the
lands in question are excluded by Section 1 (2)(ii) of
the Abolition of Inams Act.
14. Mrs. Ansari, advocate drew attention to say
filed by the Wakf Board, which is respondent no. 4 in
these petitions. The suit lands are declared as wakf
properties. They are shown as service inam lands. The
services of Niaz-e-Rasool were continuously performed by
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the forefathers of the Inamdar. Respondent no. 4 has
taken clear stand that these are wakf lands. In the
Maharashtra Government Gazette dated 14.2.1974 Part A,
Aurangabad Division on page 51, there is entry at Sr.
No. 24 declaring the lands involved in the present
dispute as wakf property and therein it is also
specifically mentioned that inam lands S. Nos. 111,
112, 113, 115 and 116 of Takli Bardapur in Latur Taluka
are meant for Niaz-e-Rasool. Niaz is being performed by
the Inamdars at Manjlegaon and this is certified by the
Tahsildar, Majalegaon.
15. It is argued before this Court that under the
Wakf Act, 1995, inquiry was held and the properties have
been declared as wakf properties. Within one year after
declaration in the official gazette no challenge was
made to the declaration that suit properties are wakf
properties by present respondent nos. 1 to 3. The
limitation is of one year and in these circumstances,
the nature of property cannot be changed. It is also
argued that since these are inam and wakf properties,
their nature cannot be changed.
16. Under Section 6 of the Wakf Act, 1995, if any
question arises whether a particular property specified
as wakf property in the list of wakfs is wakf property
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or not or whether a wakf specified in such list is a
Shia wakf or Sunni wakf, the Board or the mutawalli of
the wakf or any person interested therein may institute
a suit in a Tribunal for the decision of the question
and the decision of the Tribunal in respect of such
matter shall be final. The proviso thereunder lays down
that no such suit shall be entertained by the Tribunal
after the expiry of one year from the date of the
publication of the list of wakfs. The result of the
judgments of the Deputy Collector and the Additional
Commissioner is to convert the wakf property into
private property by abolition of inams and declaring
respondent nos. 1 to 3 as occupants. All this was done
in absence of Wakf Board being party before the
Authorities below. This itself becomes a sufficient
ground to set aside the orders of both the authorities
below.
17. Attention is also drawn to Section 102A(c) of the
Hyderabad Tenancy and Agricultural Lands Act, 1950.
"102A. Nothing in the foregoing provisions of
this Act shall apply--
(a) ........
(b) ........
(c) to service Inam lands;
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............ ......... "
So it is clear that the provisions of the Hyderabad
Tenancy and Agricultural Lands Act, 1950 do not apply to
the lands in question. The fact that the properties are
wakf properties was never challenged by respondent nos.
1 to 3. The same was not considered either by the
Deputy Collector or the Additional Commissioner before
giving the declaration that inam is abolished and
respondent nos. 1 to 3 are occupants and the
certificate to that effect be issued to them. So
considering the totality of the circumstances, the
orders passed by the Deputy Collector and the Additional
Commissioner are not sustainable in law and therefore,
deserve to be set aside.
18. One more aspect that was also not considered is
that present petitioner Mohammed Khairuddin had made
application under the Hyderabad Atiyat Inquiries Act,
1952 for declaring him as heir. Copy of the order is
produced on record. It is styled as "Virasat Sanchika
No. 1988/Inam/4. The inquiry was made in about 1991.
However, it is clear that the Muntakhab was registered
at Sr. No. 388 in 1297 Fasli. Name of Khairuddin s/o
Hafizoddin was mentioned as original inamdar.
Thereafter there was name of Maheboob Mahaboboddin and
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thereafter there was name of Mir Khairuddin. There is
no dispute that the present petitioner is inamdar. Even
in this document it is mentioned that inam was for
Niaz-e-Rasool. In other words, it is for service of
Mohammad Prophet. It is explained that for giving feast
on the birth date of Prophet Mohammad the inam was
created and the land was granted. This document also
shows that from 1975 the property was in possession of
the Government and every year the land was given for
cultivation for a period of one year. This document
also explains how the petitioner became inamdar. It is
argued before me that this document shows the inquiry
under the Hyderabad Atiyal Inquiries Act. Attention was
also invited to Section 2(1)(b), which defines "Atiyat
grants’ and it includes inams to which Hyderabad Atiyat
Inquiries Act, 1954 is not applicable. Section 2(1(c)
defines ’Muntakhabs and Vasiqas’. It is argued that if
we consider Sections 3 and 5 of the Atiyat Inquiries
Act, 1952, it is clear that the present inam is one
which is not governed by the Abolition of Inams Act, but
it is one which is covered by the Atiyat Inquiries Act
and, therefore, previously there was inquiry under said
Act. All these aspects were not considered by the
Deputy Collector or the Additional Commissioner.
19. In view of the above said reasons, in my opinion,
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the impugned judgments and orders passed by the Deputy
Collector (L.R.) Latur on 30.11.1992 and by the
Additional Commissioner, Aurangabad Division, Aurangabad
on 14.9.1994 deserve to be set aside.
20. In the result, both the writ petitions are
allowed. The judgments and orders passed by the Deputy
Collector (L.R.) Latur on 30.11.1992 and by the
Additional Commissioner, Aurangabad Division, Aurangabad
on 14.9.1994 are set aside. The applications filed by
respondent nos. 1 to 3 for abolition of inam by
declaring them as occupants and for issuance of
occupancy certificates are hereby dismissed. Rule is
made absolute accordingly. In the circumstances of the
case, the parties are directed to bear their own costs.
(P.R.BORKAR, J.) (P.R.BORKAR, (P.R.BORKAR, J.) J.)
*
// Authenticated copy //
D.B.Mahajan,
Private Secretary to Honourable Judge.
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