HON’BLE THE CHIEF JUSTICE SRI G.S. SINGHVI AND HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY Writ Appeal Nos.796, 805 and 826 of 2007 Writ Appeal No.796 of 2007 Between: LANCO Hills Technology Park Pvt. Ltd. Rep. by its anaging Director, Hyderabad … Appellant And H.A. Rahman & others. … Respondents Writ Appeal No.805 of 2007 Between: Emaar Properties represented by its General Manager, Hyderabad. … Appellant And H.A. Rahman & others. … Respondents Writ Appeal No.826 of 2007 Between: The State of A.P. rep. by its Principal Secretary to Government, Revenue Department, Hyderabad and others … Appellants And H.A. Rahman & others. … Respondents Counsel for the appellant in Writ Appeal No.796 of 2007: Shri V.R. Manohar, Senior Advocate assisted by Shri C. Kodanda Ram and Shri Mahamood Ali Counsel for the appellant in Writ Appeal No.805 of 2007: Dr.A.M. Singhvi, Senior Advocate assisted by Ms.Shireen Sethna Baria and Shri P. Venugopal Counsel for the appellants in Writ Appeal No.826 of 2007: Shri C.V. Mohan Reddy, Advocate General assisted by Shri J. Sudheer, Special Government Pleader Counsel for Shri H.A. Rahman (respondent No.1): Shri S. Satyam Reddy Counsel for Andhra Pradesh Industrial Infrastructure Corporation Limited: Shri K.V. Simhadri Counsel for A.P. State Wakf Board: Shri S.M. Subhani ::JUDGMENT:: October 26, 2007 Per G.S. Singhvi, CJ These appeals are directed against order dated 20.9.2007 passed by the learned Single Judge in WPMP No.21993 of 2007 in Writ Petition No.17192 of 2007 whereby he restrained M/s.Emaar Properties (respondent No.9 in the writ petition and appellant in Writ Appeal No.805 of 2007) and Lanco Hills Technology Park Private Limited (respondent No.10 in the writ petition and appellant in Writ Appeal No.796 of 2007) from making any construction in Ac.400-00 land comprised in Survey Nos.203/1 and Ac.108.10 gts. land comprised in Survey No.201 respectively situated at Manikonda Village, Rajendranagar Mandal, Ranga Reddy District. Background Facts: Shri H.A. Rahman (respondent No.1 in these appeals), who is member of the Andhra Pradesh Legislative Council and belongs to minority community, filed Writ Petition No.17192 of 2007 for grant of a declaration that the action of respondent Nos.1 to 6 (appellant Nos.1 to 6 in Writ Appeal No.826 of 2007) in allotting different extents of land in Manikonda Village, Rajendranagar Mandal, Ranga Reddy District, which is a wakf property, is illegal. He prayed for quashing the allotments made in favour of respondent Nos.9 to 15 (two of whom i.e. respondent Nos.9 and 10 are appellants in Writ Appeal Nos.796 and 805 of 2007) and to restrain respondent Nos.9 and 10 from raising any construction on the land allotted to them in Survey Nos.203/1 and 201 respectively. In order to establish his locus to file writ petition under Article 226 of the Constitution of India, respondent No.1 averred that he worships and performs religious rites at Dargah Hazarat Hussaini Shah Wali (hereinafter referred to as ‘the Dargah’) and has been offering Chaddar and distributing alms to poor on the occasion of Urs. He further averred that Manikonda Jagir was declared as wakf vide order dated 31.5.1957 passed by Nazim Atiyat in File No.2/56, but the same was not notified as wakf property in Notification dated 9.2.1989 issued under Section 5 (2) of the Wakf Act, 1954 (for short, ‘the 1954 Act’). Later on, this omission was rectified by issuing an errata in Gazette Notification No.14, dated 6.4.2006 whereby total extent of Ac.1654.32 gts. land has been shown as wakf land of the Dargah. Respondent No.1 relied on order dated 14.12.1961 passed by the learned Single Judge of this Court in Writ Petition No.666 of 1959 and alleged that even though the State Government does not have any right over the wakf property, it has illegally transferred the land comprised in various survey numbers of Manikonda Village to Andhra Pradesh Industrial Infrastructure Corporation Limited (for short, ‘the Corporation’) who, in turn, allotted different parcels of land to respondent Nos.9 to 15. In paragraph 9 of his affidavit, respondent No.1 averred that respondent Nos.11 to 15 have already raised construction, but M/s.Emaar Properties and Lanco Hills Technology Parks Private Limited (respondent Nos.9 and 10) have not made any construction. For the sake of reference, that paragraph is reproduced below: “9. I submit that the respondents 11 to 15 have already made constructions and respondents 9 and 10 have not yet made any constructions in the lands allotted to them and, therefore, the petitioner is seeking direction to the respondents 9 and 10 not to make any constructions in the lands allotted to them by A.P.I.I.C.” Along with the writ petition, respondent No.1 filed WPMP No.21993 of 2007 for issue of a direction to respondent Nos.9 and 10 in the writ petition not to make any construction on the land allotted to them. In the counter filed on behalf of the Corporation (appellant No.6 in Writ Appeal No.826 of 2007), its Manager (Law), Shri K.Sathaiah denied the petitioner’s assertion that the land in question is wakf property ad averred that the same was never recorded as wakf of the Dargah in the revenue record and this is the reason why it was not shown as wakf property in Notification dated 8.2.1989 issued under the 1954 Act. However, Notification dated 6.4.2006 got published by the Chief Executive Officer of the Andhra Pradesh State Wakf Board (for short, ‘the Board’) without following the procedure prescribed under the Wakf Act, 1995 (for short, ‘the 1995 Act’). He then averred that in view of the provisions contained in the Andhra Pradesh (Telangana Area) (Abolition of Jagirs) Regulations, 1358, F (1949) (for short, ‘the Regulations’) all the jagirs in Telangana region including the jagir of Manikonda Village stood abolished with effect from 15.9.1949 and vested in the State Government and, therefore, the same could not be treated as wakf. Shri Sathaiah further averred that the lands covered by the writ petition were shown as government lands in the revenue records since 1912 and the physical possession thereof remained with the government till it was handed over to the Corporation/Hyderabad Urban Development Authority. Shri Sathaiah has then referred to Writ Petition No.12617 of 2001 filed by Syed Shah Safiullah Hussaini claiming ownership of the land as Inam Mashuruthal Kidmath lands attached to the Dargah and order dated 11.7.2001 passed by the learned Single Judge in WVMP No.1747 of 2001 to show that the land measuring Ac.1297.13 gts. is government land and the remaining land measuring Ac.75.11 gts. claimed by Syed Shah Safiullah Hussaini is patta land of private individuals. According to Shri Sathaiah, Ac.20.32 gts. land comprised in Survey No.203/3 and 4, 205, 206, 208, 209 and 210/2 of Manikonda Village was acquired under the Land Acquisition Act, 1894 vide awards dated 31.10.2005, 31.12.2001, 21.1.2006 and 31.12.2001 for development of the projects by the Corporation and physical possession was handed over to the Corporation; that land comprised in Survey Nos.203/1, 210/1 and 211/1 measuring Ac.915.30 gts. of Manikonda Village has been classified as Kancha Sarkari, out of which, Ac.250-00 land was handed over by revenue authorities to Indian School of Business pursuant to G.O.Ms.No.410, Revenue (Assn.V) Department, dated 21.5.1999 and total area measuring Ac.734.03 gts. comprised in Survey Nos.203/1, 203/P, 201, 210/1, 210/P, 211/1 and 211/P was handed over to the Corporation on various dates between 28.10.2000 and 17.2.2005 for development of projects. Thereafter, different parcels of land were allotted to respondent Nos.9 to 15 for their projects. For better appreciation of the stand taken by the Corporation, paragraphs 6 to 12 of the affidavit of Shri K. Sathaiah are reproduced below: “6. It is submitted that reliance placed upon the Gazette notification published in the Gazette dated 6.4.2006 of the Chief Executive Officer to contend the lands in the WP are Wakf properties is misplaced and the Notification itself is not in accordance with the provisions of the Wakf Act, 1995. The earlier Notification published in the A.P. Gazette dated 9.2.1989 did not cover the lands in question. The earlier notification was got published under the Wakf Act, 1954, which was repealed and replaced by Wakf Act, 1995 which came into force w.e.f. 22.11.1995. As such, the provisions of the Wakf Act, 1995 apply to the 2nd notification, but the 2nd notification was got published without following the procedure under the Act, 1995. It is significant to note that the 1st notification published in the Gazette dated 9.2.1989 pertains to the lands in Dargah Hussain Shah Wali Village whereas the subsequent and the 2nd notification in the A.P. Gazette dated 6.4.2006 captioned as Addendum pertains to the lands of Manikonda Village. In any case, Jagir land could not have been legally a wakf. Further, the Sajjada Nasheen of Dargah Hussaini Shahwali Village previously filed W.P.No.12617/2001 in this Hon’ble Court with a similar prayer in respect of the same land. Subsequently, the said writ petition was got withdrawn on 18.12.2006. Further, the period of 3 months prescribed for making application for registration of wakf u/s.36 (8) of Wakf Act, 1995 expired long back apart from the fact that the vital details like the name of the Wakif, copy of Wakfnama, competency of the Wakif to create Wakf, the date on which the Wakf was created etc. were not placed on record by the petitioner in the present WP. 7. For better appreciation of the case, the factual conspectus as followed is submitted. Obviously, Manikonda is a jagir village. All the jagirs in Telangana region of the State were abolished on 15.9.1949. The then Government, after abolition of Jagirs enacted the Hyderabad (Abolition of Jagirs) Regulations, 1358 Fasli to proceed with Jagir lands. After abolition of the Jagirs, the title of the lands passed in favour of the Government. What all the Jagirdar or the Sarf-e-Khas could have claimed, thereafter was the commutation amount which became payable on account of the abolition of Jagirs under either the Jagir (Abolition) Regulation, 1358 Fasli or the Jagir Commutation Regulation, 1359 Fasli. Commutation amounts would be payable to the Jagirdar, if in terms of muntakhab, he had the title in respect of the Jagir land. Jagirdars have no right to alienate any land after abolition of Jagirs under A.P. (TA) (Abolition of Jagirs) Regulations, 1358 Fasli (1949) as all Jagir lands stand vest in Government. In Raja Rameswara Rao v. Raja Govinda Rao (AIR 1961 SC 1442) the Hon’ble Supreme Court has observed: The first incidence of Jagir is that it must be taken prima facie as an estate granted for life … … The State has got a right to resume the grant at pleasure and if that is so, it cannot be said that the Jagirs Survey Nos. Extent Acs. gts. 203 207.35 210 429.14 211 288.30 212 124.31 granted in Hyderabad were permanent or hereditary though it may be that a son was allowed to succeed to the father in the normal course. The State however had always the right to resume the grant at pleasure. In compliance with the common orders dated 21.6.1995 of this Hon’ble Court passed in W.P.No.435 and 1052 of 1988 and W.P.No.17305 of 1987, the Joint Collector, R.R. District enquired into the applications of the writ petitioners for assignment of lands to them and by his orders dated 29.1.1997 has categorically concluded as follows: The settlement records viz. the Classer Register, Akarbandi and Sethwar have been verified. The Classer Register prepared at the time of initial survey in 1319 Fasli i.e. 1910 A.D. have been verified. According to the Classer Register, the lands in Survey No.203, 210, 211 and 212 are shown as Poramboke i.e. Government lands. The Akarbandi has been verified. The entries in respect of the suit lands (Survey Nos.203, 210, 211 and 212) also reveal that the lands are recorded as poramboke. The sethwar of Manikonda village was prepared in the year 1322 Fasli i.e. 1912 A.D. According to the Sethwar, the lands in: cue recorded as Poramboke (Government land). The records referred to above were prepared prior to abolition of Jagirs i.e. 15.9.1948. The Government was the absolute owner of the suit lands even during the regime of Jagirdars. … … The Jagirdar was only entitled to enjoy usufructs. The suit lands during the Jagir tenure itself were vested with Government and after the abolition of Jagirs also they continued to be vested with the State Government. … 8. It is submitted that Syed Shah Safiullah Hussaini son of late Syed Shah Akbar Hussaini, Sajjada Nasheen r/o.Darga Hussaini Shahwali Village filed W.P.No.12617 of 2001 against (1) Secretary to Government, Revenue Department, (2) Chief Commissioner, Land Administration, (3) District Collector, R.R. District (4) Mandal Revenue Officer, Rajendranagar Mandal (5) Managing Director, APIIC (6) MD, Infosys for correction of revenue records in respect of the lands in Survey No.185 to 265 in Manikonda Jagir Village in his favour claiming ownership of the lands as Inam Mashuruthal Kidmath lands attached to Dargah Hazarath Hussain Shahwali. Initially, this Hon’ble Court granted interim orders on 26.6.2001 in W.P.M.P.No.15708 of 2001 in W.P.No.12617 of 2001. Subsequently on contest, the interim order was vacated on 11.7.2001 in W.V.M.P.No.1747 of 2001. The said W.P. was filed on bogus letter dated 18.5.2001 purported to have been issued by CCCLA. Later on, the W.P. was got withdrawn on 18.12.2006. While vacating the interim orders dated 26.6.2001 on 11.7.2001m, this Hon’ble Court has accepted the fact that as per the Sethwar of 1322 Fasli corresponding to 1913 A.C.: i. it was found that survey Nos.185 to 192, 194 to 196 and 247 to 251 admeasuring Acres 40.32 gts. are classified as Maktha lands and stand in the name of the father of the petitioner. ii. That land in survey No.59 to 65 admeasuring Acres 3.13 gts. classified as mafi inam, stand in the name of the father of the petitioner. iii. Land in Survey Nos.193, 199, 201, 203, 207, 210, 211, 212, 21, 229, 231, 241, 243, 246, 261, 263 and 265 admeasuring Acres 1,297.13 gts. are Government lands; iv. and the remaining lands admeasuring Acres 75.11 gts. claimed by the petitioner are patta lands stand in the name of different persons. The aggregate extent of land is Acres 1,416.29 gts. 9. It is further submitted that on the requisition of the Corporation, land to total extent of Acres 20-32 gts. in Survey Nos.203/3 & 4, 204, 205, 206, 208, 209 & 210/2 of Manikonda Village was acquired under L.A. vide Awards dated 31.10.2005, 31.12.2001, 21.1.2006 and 31.12.2001 of the Land Acquisition Officer-cum-Special Dy. Collector (LA), Industries, Hyderabad for utilizing the same for the public purpose of development of projects by APIIC. The physical possession of the lands so acquired was taken under L.A. Act on 16.6.2005, 24.4.2005, 2.7.202, 30.1.2006 and 2.7.2002 and the lands in turn were handed over to the Corporation. In respect of the lands acquired through the Awards dated 31.12.2001 for an extent of Acs.6-23 gts. and Acs. 3-09 gts. in Sy.Nos.204, 205, 206, 208 and 209 of Manikonda Village, WPs. are pending before this Hon’ble Court challenging LA proceedings alleging that procedure under the LA Act was not followed. 10. It is submitted that the following lands in Manikonda Jagir Village are classified as Kancha Sarkari. Survey Nos. Extent Acs. Gts. 203/1 201.35 210/1 425.14 211/1 288.30 11. Out of the above Government lands, an extent of Acres 250.00 in Sy.No.203 and 210 was handed over by the Revenue Authorities to Indian School of Business following orders in G.O.Ms.No.410, Revenue (Assn.V) Department, dated 21.5.199. Further extents of Government lands were handed over to the Corporation as follows for development of Projects. Survey Nos. Extent Acs. Gts. Date of handing over possession 203/1 72.00 28.10.2000 203/1 49.01 24.04.2001 203/P 28.14 27.10.2001 207 01.12 02.07.2002 201/P 68-05 26.3.2004 201/P 40-05 28.10.2004 210/1 198.02 28.10.2000 210/P 29.22 27.10.2000 211/1 213.21 28.10.2000 211/P 34.01 17.02.2005 Total: 734.03 12. It is submitted that the Corporation allotted Government lands in Manikonda Village to the following companies/respondents No.9 to 15 herein for development of their projects. Sy.No. Extent Acs. Gts. i) Emaar Properties 203/1 400.00 ii) Microsoft 54.79 iii) Infosys 50.00 iv) Wipro 30.00 v) VJIL 5.00 vi) Polaris 7.89 vii) Lanco 108.10” In the counter-affidavit filed on behalf of the Board, its Chief Executive Officer Shri S. Madar Saheb has supported the cause of the petitioner by stating that the total area of Manikonda Jagir Village i.e. Ac.1997.18 gts. is service Inam land and the same has always been treated as wakf. He has averred that errata, which was published in Andhra Pradesh Gazette dated 6.4.2006, is final and conclusive about the character of the property in question as wakf property and no alienation can be made without prior sanction of the Board. Paragraph 11 of the affidavit of Shri S. Madar Saheb on which strong reliance was placed by Shri V.R. Manohar, Senior Counsel appearing for Lanco Hills Technology Park Limited, reads thus: “11. I submit that once the property is notified u/s.5 (2) of the Wakf Act, 1995 based on the report submitted by the Commissioner of Wakfs U/s.4 (3) of the Wakf Act, 1995, the said notification is final and conclusive U/s.6 (4) of the Act, unless and until it is modified in pursuance of the decision or the tribunal U/s.6 (1) of the Wakf Act, 1995. Therefore, once the property is notified only almighty God is the owner of the said property under notification. The Board, which is constituted u/s.14 of the Wakf Act, 1995 is having statutory authority to manage, control and administer the said property on behalf of the God as really empowered U/s.32 of the Wakf Act, 1995. Therefore, any alienation of the said notified property, without sanction of the Board is null and void and the same is not binding on the Board as contemplated u/s.51 of the Wakf Act, 1995 in the present case, the Government of Andhra Pradesh without there being any prior notice or sanction by the Board, allege to have been allotted the valuable lands of the subject institution in favour of resp. Nos.9 to 15 through 6th respondent. If at all, the Government desires to utilize the property belongs to the Wakf Institution, that they should take prior sanction from Board. Any Proceedings for purchase of any Wakf Land including the land of the subject institution should be by paying the requisite sale consideration. Therefore, the Board alone is entitled the amount which was collected by the Government from the 3rd parties towards sale consideration of lands which was already allotted to respondent No.6 and respondent Nos.9 to 15. As an interim measure, keeping in view of the interest of the property belong to the Wakf institution, this Hon’ble Court may direct the Government to transfer the said amount into the account of this respondent.” Shri Vijay Memon, General Manager of Emaar Hills Township Private Limited and Boulder Hills Leisure Private Limited has filed affidavit on behalf of respondent No.9 (the appellant in Writ Appeal No.805 of 2007). He has averred that in furtherance of notice issued by the Corporation inviting ‘Expression of Interest’ for development of projects consisting of International Standard Convention Centre, Star Hotels, Golf Course and Villas to meet and cater the potential tourist traffic in Hyderabad, which is being considered as a tourist-cum- business destination for international and domestic travelers, various parties gave their offers; that after considering the offers, M/s.Emaar Properties PJSC, Dubai was selected; that Memorandum of Understanding was signed between the Corporation and M/s.Emaar Properties PJSC, Dubai and, on 19.8.2003, a collaboration agreement was signed between the parties, which was subsequently modified by supplementary agreement dated 19.4.2005 for setting up an integrated project. Later on, the integrated project was restructured to have three Special Purpose Vehicles for implementation of three different components i.e. Emaar Hills Township Private Limited, Boulder Hills Leisure Private Limited and Cyberated Convention Center Private Limited. These companies have been registered with the Registrar of Companies. In paragraphs J, K, L and M of his affidavit, Shri Vijay Memon has given the status of different projects and the expenditure incurred by respondent No.9. These paragraphs read as under: “J) The APIIC on 29.11.2005 handed over the lands to EHTPL and BHLPL and EHTPL and BHLPL have been in possession of the land. It is stated that a part of the projects of BHLPL are on lease to an extent of 235 acres and at present the Golf Course is rearing completion on the leased land. It is relevant to point out that contracts for Golf Course have already been awarded to L & T ECC Division for a value of about Rs. 90 crores and L & T has imported expensive equipment for the Golf Course. It may be noted that EHTPL and BHLPL have already spent and are expending huge amounts for a dedicated sewerage treatment plant for the Township and Golf Course to ensure that treated water is recycled for irrigation of the Golf Course. BHLPL has further purchased 17 acres of free hold land for the Boutique Hotel. The Club House constitution is completed after expending huge amounts and the project undertaken by EHTPL, ie., model homes, sales centre are completed as also the infrastructure work for the township, for which contract a contract awarded in May 2006 to Shapoorji Pallonji at huge cost. EHTPL has purchased land admeasuring Ac. 258.36 guntas at a cost of about Rs. 75 crores for the Township Project. The total expenditure incurred on the Townhip is more than Rs. 82 crores, which is being financed through debt and equity. K) This respondent has already undertaken and implemented the Integrated Project as a whole and in the event if the lands, for any reason whatsoever, not being provided to the SPVs the entire Integrated Project will surer huge financial losses running into more than Rs.400 crores and the project will not be financially viable for APIIC and Emaar Properties PJSC. Further, it will result in wrong signals being sent to potential foreign institutional investors coming into the State including Emaar Properties, PJSC, Dubai, which has publicly start its intention of investing about $ 5 billion in India in the next few years. It is respectfully submitted that in the event of the Integrated Project being jeopardized by a few individuals, the entire interest of State Andhra Pradesh to create world-class business cum leisure destination as part of its development activities will come to a halt. L) It is further submitted that stalling any part of the Integrated Project or obstruction of any sort or in any manner to the development of the Integrated Project would lead to huge financial losses to EHTPL and BHLPL as large investments have already been made into the development of the Integrated Project. In that event of delay caused by litigation, there will be huge costs overrun which will have an adverse impart on the financial viability of the Integrated Project and consequent loss of revenue to the State. That in keeping with the obligation under the Collaboration Agreement, CCCPL has already completed the construction of the Hyderabad International Convention Centre (HICCC) which is the largest Convention Centre in South Asia providing seating arrangements for around 4000 to 5000 seats in the plenary hall with additional break-away rooms along with 300 keys Business Hotel being constructed along with this project. The project cost of the Convention Centre is about Rs. 174 crores and project cost of the Business Hotel’s about Rs. 122 crores therefore, the total cost being Rs. 296 crores. The total project cost of Convention Centre and Business Hotel is financed through equity to the extent of Rs. 148 crores and through loans to the extent of Rs. 148 crores from Financial Institutions. It is further most respectfully submitted that upto the end of January, 2006, this respondent has already raised Rs. 235 crores in total for the Convention Centre and Hotel Project, through Equity and Unsecured loans to the extent of Rs. 155 Crores, through Rupee Loan from IDFC to an extent of Rs. 40 crores. The said Convention Centre is offering state of