HON’BLE SHRI G.S.SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE C.V.NAGARJUNA REDDY WRIT APPEAL No.887 of 2006 Between: K.S.B.Ali, S/o.K.Z.Ali, 17-1-372/B/9, Street No.9 Santosh Nagar, Hyderabad (In representative capacity of 203 Legal Heirs of late Nawab Nusarath Jung Bahadur) … Petitioner AND The State of Andhra Pradesh, represented by Chief Secretary, Secretariat Buildings, Hyderabad and 17 others. … Respondents Counsel for the petitioner : Sri T.S.Doabia, Senior Advocate, assisted by Sri I.V.S. Rao and K.Ravinder Reddy Counsel for respondent Nos.1to 5: Sri C.V.Mohan Reddy, Advocate General, assisted by Sri A.Satya Prasad, Spl. Government Pleader and G.P. for Revenue for respondents 1 to 8. Sri M.Ramu, Advocate for Respondent No.9. Sri G.Vidyasagar, Advocate for Respondent No.10. Sri S.Ravi, Advocate for Respondents11,12,13,17& 18. Sri E.Ajay Reddy, Advocate for Respondent No.15. Sri Deepak Bhattacharjee, Advocate for Respondent No.16. Dated: October, 2007 :JUDGMENT: Per C.V.NAGARJUNA REDDY, J. This Writ appeal is filed against order dated 14-7-2006 passed by a learned Single Judge of this Court in Writ Petition No.14439 of 2006, whereby he dismissed the same in limine. The appellant for himself and in his representative capacity on behalf of 203 co-legal heirs of Nawab Nusarath Jung Bahadur-I, filed Writ Petition No.14439 of 2006 seeking a writ of mandamus to declare the tenders called for by the Hyderabad Urban Development Authority, 7th respondent herein, (for short “HUDA”) for sale of Ac.100.00 guntas of land situated in Kokapet village, Rajendranagar Mandal, Ranga Reddy District, as malafide, arbitrary, malicious, capricious and unconstitutional. The appellant also sought for a declaration that HUDA never had any title to the property in dispute and that their attempt to sell away the same in public auction, without following the due process of law, as null and void. The background facts: Late Nawab Nusrat Jung Bahadur-I (for short “late Nusrat Jung”) was the holder of the land admeasuring Ac.1635.35 guntas situated in Koutham Kunta (subsequently came to be known as Asad Nagar and presently as Kokapet). He died issueless in the year 1875 AD. He left behind his widow Smt.Rahimunnisa Begum, who appeared to have died on 10-10-1916. Late Nusrat Jung had two paternal first cousins, viz., Nawab Gulam Hussain and Nawab Md.Sardar. It is the case of the appellant, which is not disputed, that on 16-1-1916 the entire property of Late Nusrat Jung was taken over by SARF-E-KHAS MUBARAK (private secretariat) of the Nizam for supervision and succession enquiry was commenced in August, 1905 in the Court of Nizamat-E-Atiyat, the judicial branch of SARF-E-KHAS MUBARAK exercising the powers of civil and revenue court. The said enquiry was later transferred to the Court of Nazim Atiyath, which came into existence under the provisions of the Hyderabad (Telanga Area) Atiyath Enquiries Act, 1952 (for short “the 1952 Act”). On 15-2- 1954 Nazim Atiyath Court passed an order in respect of the properties of Late Nusrat Jung situated in Koutham Kunta and Bagh-e-Asifnagar. It was held in the said order that the oral evidence and Hibanama show that Koutham Kunta first came to be known as Asad Nagar and later as Kokapet. Nazim Atiyath Court, after tracing the history of title, held that the lands included in Kokapet village deserve to be confirmed as Madad-E-Maash (grant-in-aid) in favour of the heirs of Late Nusrat Jung. It was also held that although the land enjoyed by the holders as Madad-E-Maash was subsequently constituted into a separate village, the Maash (the property) will be deemed to have continued only as Arazi (Inam lands) and it was confirmed as such and that Kokapet was regarded as a village only for administrative purposes. Nazim Atiyath Court further held that Kokapet was taken over by the Government under the Hyderabad (Abolition of Jagirs) Regulation 1358 Fasli (for short “the 1358 Fasli Regulation”) and the said action was not challenged by Maashadars and that the question of appointing Qabiz for the lands included in the village does not arise. However, in respect of the lands in Bagh-e-Asifnagar, it was held that each of the Maashdars (holders of the property) is entitled to his respective shares and that since the extent of the property was small, the Collector should formulate proposals for the disposal of the land by sale or otherwise after obtaining the permission of the Government in the Atiyat Department, dispose of the same and distribute the money among the Maashdars. The order of the Nazim Atiyath Court was submitted to the then Revenue Minister in the form of a note and the same was approved by him on 24-12- 1954. In purported execution of the order of the Nazim Atiyath Court and that of the Revenue Minister, Muntakhab No.57 of 1955 dated 12-5-1955 was issued. As the Sendhi (excise) trees standing on the land shown in the Muntakhab were not included and thereby the claimants were denied their Haq Malikana Rights, they made an application to the Assistant Nazim Atiyath to amend the Muntakhab. The said application having been rejected, the claimants approached Nazim Atiyath Court by way of an application, which was also rejected. As the claimants were unsuccessful before the Board of Revenue and the Revenue Minister, they filed Writ Petition No.227 of 1960 before this Court and the said writ petition was allowed on 1-4-1963, wherein it was held that the claimants were entitled to the inclusion of income from Sendhi trees in the Muntakhab. The appellant started approaching the Government of Andhra Pradesh to release the lands situated in Kokapet village, covered by Muntakhab in favour of the legal heirs of Late Nusrat Jung (for short “the legal heirs”). The Principal Secretary to Government, Revenue (J.A) Department in Memo dated 15-4-2002, after elaborate consideration of the representation of the legal heirs, rejected the same. However, the said Memo was withdrawn by the successor Principal Secretary on 6-5-2004. This was followed by Memo dated 31-7-2004 passed by another Principal Secretary, wherein he requested the Special Chief Secretary and Chief Commissioner of Land Administration, Hyderabad, to take steps to hand over the property in dispute. However, the same Officer, after obtaining legal opinion and having examined the case, issued Memo No.1640/JAI/0303-9 dated 21-5-2005, wherein it was noted that the claim of the petitioner was already rejected by the Government in Memo No.68688/JA.1/99-20 dated 15-4- 2002 and that the subsequent orders dated 6-5-2004 and 31-7-2004 issued in favour of the petitioner were without jurisdiction. The Principal Secretary to Government, Revenue Department also issued proceedings dated 6-6-2005 interdicting mutation proceedings by respondents 4 to 6. These Proceedings were challenged in Writ Petition No.10084 of 2006. When HUDA put to auction Ac.100.00 guntas of the disputed land, the appellant filed Writ Petition No.14439 of 2006. The learned Single Judge by order dated 14-7-2006 dismissed the Writ Petition No.14439 of 2006 at the admission stage holding that the appellant raised a title dispute over immovable property and that in a proceeding under Article 226 of the Constitution of India an enquiry into such a dispute cannot be undertaken. The learned Single Judge, therefore, relegated the appellant to the civil court by filing an appropriate suit for declaration and injunction. In his order, the learned Single Judge also noted the fact that the land in dispute has already been handed over to HUDA for the purpose of developing industrial/commercial plots for Information Technology Industry. Feeling aggrieved by the said order, the appellant filed the present Writ Appeal. After the writ appeal was admitted and notices issued, all the respondents, including respondents 9 to 18 whose bids in the auction conducted by HUDA were accepted for sale of different parcels of land forming part of the disputed property, filed separate counter affidavits. Thereafter, the appeal was heard on merits. SUBMISSIONS: Sri T.S.Doabia, learned Senior Counsel, assisted by Sri I.V.S.Rao and Sri K.Ravinder Reddy, Advocates, appearing for the appellant made the following submissions: (1) The Nazim Atiyat Court, vide its order dated 15-2-1954 held that the legal heirs have succeeded to the property in dispute and the said order was approved by the Honourable Revenue Minister by order dated 22-12-1954. (2) Following the orders dated 15-2-1954 and 22-12-1954 of the Nazim Atiyat and the Honourable Revenue Minister respectively, Muntakhab bearing No.57/55 dated 12-5-1955 was issued by the Atiyat Enquiries Branch, Revenue Department, Secretariat, Government of Andhra Pradesh, Hyderabad, releasing the land admeasuring Ac.1635.34 guntas situated in Kokapet village in favour of the legal heirs. (3) In view of the orders of the Nazim Atiyat and the Honourable Revenue Minister and the Muntakhab issued in favour of the legal heirs, the Government is left with no option other than implementing the said orders, which have attained finality. (4) Even if there is any defect in the order passed by the Honourable Revenue Minister, in view of the provisions of the Revenue Minister’s Orders (Violation) Act, 1960 (for short “the 1960 Act”), the said order of the Honourable Revenue Minister stands validated and that, therefore, the respondents are not entitled to ignore the order of the Honourable Revenue Minister on the ground that the same is either not validly passed or that he has no jurisdiction to pass such an order. (5) The judgment dated 1-4-1963 in Writ Petition No.227 of 1960 whereby this Court directed implementation of Muntakhab, has become final, and that the impugned action of respondent No.1 is in the teeth of the said judgment. (6) The learned Single Judge committed an error in dismissing the Writ Petition in limine without going into the merits of the case on the ground that the writ petition involves a title dispute while, in fact, no such dispute exists in view of the Muntakhab, which, in effect, is the decree passed in pursuance of the order of Nazim Atiyat Court. Sri C.V.Mohana Reddy, the learned Advocate General, appearing for respondents 1 to 8 made the following submissions: (1) Kokapet was a Jagir village and that with the abolition of Jagirs under the Hyderabad (Abolition of Jagirs) Regulation 1358 Fasali all the Jagir lands stood vested in the Government and that, therefore, the pre-existing rights of the legal heirs stood abolished. (2) Under the provisions of the 1952 Act Nazim Atiyat had limited jurisdiction to make enquiries into the Atiyat Grants as defined under Section 2(1)(b) of the said Act and it was not vested with the jurisdiction of granting property rights over the Jagir lands. (3) Neither the Nazim Atiyat nor the Honourable Revenue Minister conferred any rights over the disputed land on the legal heirs and that the Muntakhab issued in their favour is contrary to the said two orders. Therefore, the Muntakhab is not enforceable. (4) The judgment dated 1-4-1963 of the High Court in Writ Petition No.227 of 1960 had neither recognized nor declared the rights of the legal heirs over the immovable properties and, on the other hand, the said judgment operates as res judicata as the part of the relief of delivery of possession of the property claimed by the legal heirs was not granted by the High Court. (5) The IV Additional Judge, City Civil Court, Hyderabad, in his elaborate judgment dated 30-6-1996 passed in O.S.No.512 of 1973 went into the scope of the order of the Nazim Atiyat and the Muntakhab and gave a categorical finding that the Nazim Atiyat had no jurisdiction to confer rights over the immovable property and the said judgment was confirmed by a Division Bench of this Court in its judgment dated 11-12-1985 in CCCA No.142 of 1976. (6) When some legal heirs of Late Nusrat Jung raised claims over the land in dispute, the Nizam issued the Royal Farman, whereby it was clearly held that the issue regarding vesting of disputed land in the Khalsa (Government) had already been decided and that, therefore, it cannot be reopened as it operates as res judicata. POINTS FOR CONSIDERATION: Having regard to the respective submissions of learned counsel for the parties, as noted above, the following points arise for consideration: (1) What were the powers and jurisdiction of the Nazim Atiyat under the provisions of the 1952 Act? (2) What is the scope and purport of the order dated 15-2-1954 of the Nazim Atiyat Court? (3) What is the true purport of the order dated 24-12-1954 of the Honourable Revenue Minister and whether the said order falls within the scope of the 1960 Act and gets validated under the provisions of the said Act even if the Honourable Revenue Minister had no jurisdiction to pass the said order? (4) Whether Muntakhab No.57 of 1955 dated 12-5-1955 is in conformity with the order dated 15-2-1954 of the Nazim Atiyat Court, and, if not, whether the same is enforceable in law? (5) What is the scope of the order dated 1-4-1963 in Writ Petition No.227 of 1960 of this Court and whether this order operates as constructive res judicata against the appellant? (6) Whether the Royal Firman has a bearing on the relief claimed by the appellant in the present proceedings? (7) What is the effect of the judgment dated 13-6-1976 in O.S.No.512 of 1973 on the file of the IV Additional Judge, City Civil Court, Hyderabad? Re-Point No.1: The sheet anchor of the case of the appellant is that the Nazim Atiyat Court in exercise of its powers under the provisions of the 1952 Act passed order dated 15-2-1954 and this was followed by order dated 12-5-1955 of the Honourable Revenue Minister and issue of Muntakhab No.57 of 1955 dated 12- 5-1955. As noted hereinabove, the contention of the learned Advocate General is that the Nazim Atiyat Court has no jurisdiction to confer property rights on Jagir lands as they are excluded from the definition of Atiyat grant. It is, therefore, necessary to examine the provisions of the 1952 Act. Before the State of Hyderabad was merged in the State of Andhra Pradesh, it enacted the 1952 Act. Section 2(1)(a) defined “Atiyat Court” as under: “ ‘Atiyat Court’ means a Court or authority competent to make Atiyat enquiries as to claims to succession to and any right, title or interest in Atiyat grants and matter ancillary thereto”. Section 2(1)(b) defined “Atiyat grant” as: “ ‘Atiyat grant’ include Inams and cash grants known as Rusums, Yomias, Mamuls, Salianas Imtiyazi, Mahwars, Pensions and any other allowances granted by the State for the performance of certain duties, past and present or as charities without obligation of any service”. Clause (c) of Section 2(1) defined “Muntakhabs and Vasikas” as: “ ‘Muntakhabs and Vasikas’ means documents issued by competent authorities as a result of Inam or succession enquiries held under the Dastoor-ul-Amal Inams or other Government orders on the subject and issued by way of continuance or confirmation of Atiyat grants”. Section 3 which provides for continuance of Atiyat grants before and after its amendment reads as follows: Before amendment: “All Atiyat grants held immediately before the commencement of the Act, shall subject to the provisions of the Hyderabad Enfranchised Inams Act, 1952, continue to be held by the holders thereof and after them by their successors, if any, subject to conditions laid down in the Muntakhabs or Vasikas, if any, relating thereto and to the provisions of this Act”. After amendment under Act 28 of 1956: “All Atiyat grants shall, subject to the provisions of the A.P. (T.A) Abolition of Jagirs Regulation, 1358 Fasli (LXIX of 1358 F), the Hyderabad Abolition of Cash Grants Act, 1952 (XXXIII of 1952) and the Hyderabad Abolition of Inams Act, 1955 (VIII of 1955), continue to be held by the holders thereof subject to the conditions laid down in the Muntakhabs or Vasikas, if any, relating thereto and to the provisions of this Act”. Section 4 dealing with enquiries into Atiyat Grants in Jagir lands reads as under: “Notwithstanding anything contained in Section 3, continuance of Atiyat grants in the erstwhile Jagir areas or granted by erstwhile Jagirdars shall be subject to inquiries made for that purpose and for confirmation in accordance with rules made under this Act”. Section 8 classified Atiyat Courts as: (a) Atiyat Deputy Collectors; (b) Atiyat Collectors; (c) Nazim Atiyat; and (d) Board of Revenue. Section 10 prescribes the jurisdiction of Atiyat Courts as specified in the Schedule. Under Section 11(1) an appeal lies to Atiyat Collector against the original decision of Atiyat Deputy Collector; to the Nazim Atiyat against the original decision of the Atiyat Collector; and against the original decision of Nazim Atiyat to the Board of Revenue. Under sub-Section (2) of Section 11 of the 1952 Act from the appellate decision of an Atiyat Collector an appeal shall lie to the Nazim Atiyat. Under sub-Section (3) of Section 11 of the 1952 Act from the appellate decision of Nazim Atiyat, an appeal shall lie to the Board of Revenue. Under sub-Section (4) of Section 11 of the 1952 Act the decision of Board of Revenue shall be final. Sub-Section (1) of Section 13 of the 1952 Act prescribes finality to the decision of Atiyat Court, except as mentioned in the Act. The Schedule before its amendment providing for the original jurisdiction of the Atiyat Courts is shown hereunder: “SCHEDULE ORIGINAL JURISDICTION OF ATIYAT COURTS Description of Atiyat grant Atiyat Deputy Collector Atiyat Collector Nazim Atiyat 1. Inams T o t a l Assessment upto Rs.250/- Beyond the powers of Atiyat Deputy Collector and upto Rs.5,000/-. Beyond the powers of Atiyat Collector without any limit. 2.Cash rants UptoRs.100/- annually. B e y o n d the powers of AtiyatDeputy Collector and upto Rs.1000/- annually. Beyond the powers of t h e Atiyat Collector without any limit. S.M.Youmus Legal Secretary” The 1952 Act was amended by the Hyderabad Atiyat Enquiries (Amendment) Act, 1956 and the said amendment was given retrospective operation with effect from the date of the principal Act. The definition of “Atiyat grant” has been amended by the said amendment Act by substituting the pre-existing definition in Section 2(1)(b), which reads as under: “Atiyat grants” mean:- (i) In the case of jagirs abolished under the Hyderabad (Abolition of Jagirs) Regulation, 1358 Fasli (LXIX of 1358 F), the commutation sums payable in respect thereof under the Hyderabad Jagirs (Commutation) Regulation, 1359 F (XXV of 1359 Fasli); (ii) Inams to which the Hyderabad Abolition of Inams Act 1954 (VIII of 1955) is not applicable; (iii) in the case of inams abolished under the Hyderabad Abolition of Inams Act, 1954 (VIII of 1955), the compensation payable under that Act; (iv) cash grants to which the Hyderabad Abolition of Cash Grants Act, 1952 (XXXIII of 1952) is not applicable; (v) cash grants temporarily continued under the Hyderabad Abolition of Cash Grants Act, 1952 (XXXIII of 1952); (vi) in the case of cash grants abolished under the Hyderabad Abolition of Cash Grants Act, 1952 (XXXIII of 1952), subject to payment of compensation, the compensation payable in respect thereof”. The Amendment Act, 1956 inserted Section 3-A regarding Enquiries as to Atiyat Grants, which reads: “3-A (1) In the case of Atiyat grants specified in sub-clause (i) of clause (b) of sub-section (1) of Section 2, Atiyat enquiries as to any right, title or interest therein shall, notwithstanding anything contained in the Andhra Pradesh (Telangana Area) (Abolition of Jagirs) Regulation, 1358 Fasli (LXIX of 1358 F) be held in Atiyat Courts in accordance with the provisions of this Act, and in the course of such enquiries, Atiyat Courts shall also be competent to enquire into claims to succession arising in respect of such grants: Provided that claims to succession arising after the completion of Atiyat inquiry of any such grant shall not be entertained in any Atiyat Court and all such claims shall be filed in and decided by the competent Civil Court. (2) In the case of Atiyat grants specified in sub-clauses (ii) to (vi) of clause (b) of sub-section (1) of Section 2, all Atiyat enquiries, enquiries as to claims to succession to, or any right, title or interest therein and matters ancillary thereto shall be held in Atiyat Courts in accordance with the provisions of this Act”. Section 8, which deals with the classification of Atiyat Courts was amended by inserting a proviso and explanation after clause (d), wherein it was provided that the Government may, by notification in the Official Gazette, appoint the date on which the Court of Nazim Atiyat shall cease to exist and as from that date the Courts mentioned in clauses (a), (b) and (d) viz., Atiyat Deputy Collectors; Atiyat Collectors; and Chief Commissioner of Land Revenue, shall constitute the Atiyat Courts. Section 10, which provides for the jurisdiction and procedure of Atiyat Courts was amended and the schedule in that regard was also amended in conformity therewith by transferring the cases from Nazim Atiyat to the Court of the concerned Atiyat Collector etc. Eventually, the State of Andhra Pradesh, vide G.O.Ms.No.1085 dated 28-10-1968 abolished the Court of Nazim Atiyat with effect from 1-11-1968. From a reading of the above referred/reproduced provisions of the 1952 Act, and as amended, it could be seen that the power and jurisdiction of Atiyat Court is confined to making enquiries into right, title or interest in Atiyat grants and also holding enquiry into the claims to succession arising in respect of such grants. Under Section 3 (pre-amended provision) all Atiyat grants held before the commencement of the Act were continued subject to the provisions of the Hyderabad Enfranchised Inams Act. 1952. Section 4 made the grants in the Jagir areas or granted by the erstwhile Jagirdars subject to enquiries and confirmation in accordance with the 1952 Act. As already noted above, the definition of Atiyat grants was amended by the 1956 Amendment Act and Section 2(1)(b)(i) specifically restricted the Atiyat grants in case of Jagir lands to the commutation sums payable under the 1359 Fasli Regulation. While the pre-amended definition of Atiyat grants was inclusive in nature, the amended definition is made exhaustive. Sri Doabia, on the basis of this distinction, submitted that it is not proper to restrict the pre-amended definition to commutation amounts only on the basis of the amended definition. An analysis of the pre-amended definition of Atiyat grant reveals that it broadly comprises two categories, viz., (1) Inams, and (2) cash grants, known as Rusums, Yomias, Mamuls, Salianas Imtiyazi, Mahwars, Pensions and any other allowances granted by the State for the performance of such duties, past and present, or as charities without obligation of any service. The word ‘Inam’ is explained in clause (f) of Section 2 of the 1952 Act as “Inam has meaning assigned to the word in Section 2(a)(i) of the Hyderabad Enfranchised Inams Act, 1952”. The definition of ‘Inam’ under the said Act is as under: “(2)(a)(i) ‘Inam’ means land held under a grant made by H.E.H. the Nizam or other competent grantor and continued or confirmed by virtue of a Muntakhab or other title deed coupled with the remission of the whole or part of the land revenue thereon either as a gift or a grant and with or without the condition of service”. It is, thus, clear that while the first part of Atiyat grant includes rights over the immovable property i.e., Inam lands, the other part relates to grants concerning cash. This position becomes clearer from the Schedule as originally provided to the 1952 Act. The Schedule divided the jurisdiction of Atiyat Courts with reference to the Inams and Cash grants. It is, therefore, evident that though the word ‘include’ was used in the original definition of Atiyat grant, the Schedule, which deals with the jurisdiction of Atiyat Courts has not referred to any grant other than Inams in respect of the immovable properties. As rightly pointed by Sri Doabia, though the inclusive definition clause contained in the Act has the effect of enlarging the scope of the meaning of Atiyat grant, the Schedule specifically restricted Atiyat Courts’ jurisdiction to enquire into claims over Inam lands only, in addition to cash grants. The reason for this is obvious i.e., in the case of Jagir lands they were already covered by two Regulations, viz., Hyderabad (Abolition of Jagirs) Regulation