IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FIRST DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 5418 of 2002 Between: Mrs. Oulian Bibi alias Gousunnisa Bibi W/o late Khaja Syed Shan Yadullah, Mohammad Mohammadul Hussain, Chisultul Khadari, R/o Moula-ka-pahad, Kalicherla village, Peddamandyam Mandal, Chittoor District. ..... PETITIONER AND 1 The State of A.P., Rep. by its Secretary Revenue (Assignment-IV) Dept., Secretary Buildings, Hyderabad. 2 The Commissimner of Appeals, Officer of the Chief Commissioner, of Land Administration, A.P., Hyderabad. 3 The Joint Collector, Chittoor District. 4 The Revenue Divisional Officer, Madanapalle, Chittoor District. 5 The Mandal Revenue Officer, Pedamandyam Mandal, Chittoor District. 6 Asthana Maqdoomullahi, Cuddpah K.S.S., Arifullah Hussaini being the minor, Rep. by its Natural Guardian and Mother, Sayeeda Safoora Ameen, R/o Ameer Peer Road, Cuddapah District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction particularly writ of Mandamus directing the Respondents 1 to 6 not to interfere with the petitioner's management and administration of Moula-ka-pahad institution and the Col. land in S.No. 392/1A situated at Kalicherla Village of Peddamandyam Mandal holding that the impugned order in Memo. No.33099/ASN.IV(2)/2001-4 dt: 8-3-2002 of the first Respondent as arbitrary, and illegal Counsel for the Petitioner: MR.M.N.NARASIMHA REDDY Counsel for the Respondent No.: MR.P.SRIDHAR REDDY The Court made the following : WRIT PETITION NO : 5928 of 2002 Between: Asthana E Maqdoomullahi Cuddapah, K.S.S.Arifullah Hussaini Sajjada Nasheen, Resident of Ammen Peer Road, Cuddapah, Cuddapah District. ..... PETITIONER AND 1 The Government of A.P. Rep. by the Principal Secretary,Revenue(ASN.IV) Department, Secretariat, Hyderabad. 2 The Chief Commissioner of Land Acquisition, The Government of A.P., Hyderabad. 3 The District Collector, Chittoor. 4 The Mandal Revenue Officer, Pedamandyam Mandal, Chittoor District. 5 Mrs. Qulian Bibi alieas Gousunnisa Bibi W/o. late Khaja Syed Shah Yadullah Hussaini, Resident of Kalicherla Village, Pedamandyam Mandal, Chittoor District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order, writ or direction more particularly a Writ of Certiorari under Article 226 of the Constitution of India calling for the records from the file of the 1st Respondent in Memo No. 33099/ASN.IV (2) 2001-4 dated 8-3-2002 and declare the said order in so far as directing for constitution of the Committee of persons to be nominated by the District Collector, the 3rd Respondent herein in consultation with the Minority Welfare Department for administration of the institution and further directing the parties to approach the civil court for adjudication about the succession to the institution as illegal, extraneous to the issue involved in the revision petition and without jurisdiction and set aside the said order to the extent indicated above Counsel for the Petitioner: MR.P.SRIDHAR REDDY Counsel for the Respondent No.: GP FOR ASSIGNMENT The Court made the following: COMMON ORDER: This common order is passed in both the writ petitions as they involve substantially similar questions of fact and law. Heard Sri P.Sridhar Reddy, learned counsel for the petitioner in W.P.No.5928 of 2002 and the 6th respondent in W.P.No.5418 of 2002, Sri M.N. Narasimha Reddy, learned counsel for the 5th respondent in W.P. No. 5928 of 2002 and the petitioner in W.P. No. 5418 of 2002 and the learned Government Pleader for Revenue appearing for respondent Nos.1 to 4 in W.P. No. 5928 of 2002 and respondent Nos.1 to 5 in W.P. No.5418 of 2002. There appear to be two Muslim religious denominational institutions i.e. Asthana-E-Maqdoomullahi, operating from Cuddapah and Moula-ka-Pahad, situated at Kalicherla village, Peddamandyam Mandal, Chittoor District. People professing faith in Asthana-E- Maqdoomullahi, a Darga, also engage in an annual ritual at the Moula- ka-Pahad at Kalicherla village. There is a dispute on this aspect however. Adherent to the rituals at Kalicherla village assert that the followers of Asthana-E-Maqdoomullahi, Cuddapah do not and are not entitled to participate in the rituals at Moula-ka-Pahad whereas the followers of Asthana-E-Maqdoomullahi, Cuddapah per contra, contend that they too are entitled to and since long are regularly participating in the rituals at the Moula-ka-Pahad at Kalicherla. These denominational disputes, however, are not the nub of the lis in these writ petitions. The dispute is more mundane and regarding material aspects. In early 1945, the District Collector, Chittoor, authorized grant of a portion of land in Sy.No.392/1A of Kalicherla village to one Hazrat Khaja Syed Shaw Ameenullah Muhammad Muhammadul Hussaini Chistiyul Khaderi Guruji of Cuddapah, who was a resident of Moula-ka-Pahad, wherein is located a Darga in Kalicherla village, for the limited purpose of tree planting along with pathways and cart-tracks and near the rest houses and pials erected in the field, for the utility and convenience of devotees and others visiting the Moula-ka-Pahad, subject to the terms more specifically delineated in a Cowl. This grant was made under Order 19(2) of the A.P. Board Standing Orders (for brevity “ the B.S.O.”). Order 19(2) of the B.S.O. enables grant of land for formation of topes to persons desirous of planting topes for public utility and convenience. Order 19(2) enjoins that persons so desirous should obtain the previous sanction of the Collector and that the grantee of the sanction may plant topes, either of fruit or timber trees or other trees affording shade, in situations approved by the Collector, near a choultry or near any place of public resort, for general accommodation and convenience or other beneficial purpose, and the grantee is allowed to cultivate the ground rent-free until the tope reaches maturity, towards compensation for the trouble and expense incurred in forming the plantation. It is further provided that when the trees attain maturity, or if the fruit trees become productive, the tope will be entered in the accounts as a public tope free of all tax, and the produce will be left to the planter, to be appropriated for the support of the choultry, repair of the road or other public purpose contemplated. Sub-paragraph (2) of Order 19(2) of the B.S.O. further enjoins that lands granted under this Standing Order for public topes should not be included in the grantee’s holding but should be entered in the “Statement of Government and Private Plantations and Topes” as well as in the Village Register of Alienations and Taluk Register F. The terms of the grant by the Collector as evidenced by the Proceedings dated 08.01.1945 and the terms enjoined by Order 19(2) of the B.S.O. clearly show that the grant was not for the benefit of any individual or an institution as such, either the institution at Cuddapah or at Kalicherla village. The grant was limited for the purpose of enabling the creation of a salubrious habitat for the pilgrims of Moula-ka-Pahad by way of planting trees along the pathways and cart-tracks, near the rest houses and pials, specifically for the utility and convenience of the devotees visiting the Moula-ka-Pahad. Neither Order 19(2) of the B.S.O. nor the initial grant by the Collector qua the order dated 08.01.1945 warranted expectation of any hereditary right to any individual or to an institution. The grant of the public property is for augmenting the public utility. The original grantee, Ameenullah Hussaini died in 1957. His elder son Peerullah Hussaini is said to have been anointed the Sajjada Nasheen of Asthana-E-Maqdoomullahi at Cuddapah and the younger son Yadullah Hussaini as the Sajjada Nasheen of Moula-ka-Pahad, Kalicherla village. Yadullah is the husband of the 5th respondent (in W.P.No.5928 of 2002 and the petitioner in W.P. No.5418 of 2002) and was anointed by the original grantee Ameenullah as the head of the Moula-ka-Pahad. On 10.06.1969, the Tahsildar, Madanapalle authorized grant of Ac.30.00 of land in S.No.392/1A of Kalicherla village to Yadulla Hussaini as the Trustee of Moula-ka-Pahad under Order 19(2) of the B.S.O for the purpose of planting trees, the same purposes for which the District Collector, Chittoor, had earlier issued the order dated 08.01.1945. Yadullah Hussaini, prior to his demise in 1987, is stated to have executed a deed of succession in favour of Arifullah Hussaini (the petitioner in W.P. No.5928 of 2002), who claims to have succeeded as the Saddaja Nasheen of Asthana-E-Maqdoomullahi as well. On 29.12.1993, the Mandal Revenue Officer, Peddamandyam, in pursuance of an application by the petitioner (in W.P. No.5418 of 2002) reissued cowl patta (a grant) in favour of Oulian Bibi (the petitioner in W.P. No.5418 of 2002), on the ground that she (being his widow), was the only legal heir to Yedullah Hussaini, the Trustee of Moula-ka- Pahad. Since the earlier grant under Order 19(2) of the B.S.O in favour of Yadullah Hussaini was by the District Collector, in terms of the authority under Order 19(2) of the B.S.O. and it was not heritable but only for the purpose of enabling creation of public facilities for the devotees visiting the Moula-ka-Pahad, it would appear incongruous that the Mandal Revenue Officer, Peddamandyam misdirected himself and treated the widow of Yadulla Hussaini as a successor entitled to re-grant. At any rate, from the terms of Order 19(2) of the B.S.O., the Mandal Revenue Officer had no authority to grant Cowl as it was only the prior sanction of the Collector which could legitimize the grant of a Cowl. Be that as it may. Aggrieved by the order dated 29.12.1993 of the Mandal Revenue Officer, Peddamandyam, the Manager of the Cuddapah institution filed an appeal to the Revenue Divisional Officer, Madanapalle. In the appeal, it was claimed that the property is wakf property, which belongs to the Cuddapah institution and was wrongly transferred by the Mandal Revenue Officer in favour of the petitioner in W.P. No.5418 of 2002. This assertion by the appellant was negatived by the Revenue Divisional Officer, who held rightly that the property is not wakf property, but of the Government. On that singular ground the Revenue Divisional Officer, Madanapalle rejected the appeal and confirmed the order dated 29.12.1993 of the Mandal Revenue Officer. Undeterred, the Cuddapah institution represented by its Manager, preferred a revision to the Joint Collector, Chittoor, who by an order, dated 22.12.1999 confirmed the status of the land as Government land; the order of the Mandal Revenue Officer; and of the Revenue Divisional Officer as well. Thereafter, Arifulla Hussaini (the petitioner in W.P. No.5928 of 2002), claiming to be the Sajjada Nasheen of the Cuddapah institution preferred an appeal to the Commissioner of Appeals and the Chief Commissioner of Land Administration. The Commissioner of Appeals, in an elaborate and well-structured order dated 23.5.2001, considered the rival claims of the petitioners in these two writ petitions and correctly concluded that neither the original grant in the year 1945 (in favour of Ameenullah Hussaini) nor the subsequent grant in 1969 (in favour of Yadullah Hussaini) was for the personal benefit of the grantee, but only for providing utility and conveniences to the devotees, in terms of Order 19(2) of the B.S.O. The Commissioner of Appeals also held that the grant by an order dated 10.6.1969 of the Tahsildar, Madanapalle, in favour of Yadullah Hussaini was not with the prior approval of the Collector as mandated under Order 19(2) of the B.S.O, but was issued solely on the basis of a deed of succession in favour of Yadullah Hussaini by his father, Ameenullah Hussaini, the original grantee. The Commissioner of Appeals, consequently, and in view of the protracted litigation, suspended the order, dated 29.12.1993 of the Mandal Revenue Officer, Peddamandyam as confirmed by the Revenue Divisional Officer and the Joint Collector and set aside the order passed by the Joint Collector dated 22.12.1999 and remanded the case to the Joint Collector for enquiry afresh with a direction to grant cowl in respect of the land of an extent of Ac.30.00 cents in S.No.392/1A of Kalicherla village after considering the material on record. Against the above order, the petitioner in W.P. No.5418 of 2002 preferred a revision to the State Government, which, by an order commonly impugned in these two writ petitions, in Memo No.33099/ASN.IV(2)/2001-4, dated 8.3.2002, approached the lis from a tangent and assumed that the claims of the petitioners in these two writ petitions being the claims of ownership of the religious institutions, being civil disputes in nature, require to be decided by the civil Court, on the question of succession to the management of the religious institutions. The State Government further assumed that entitlement to the grant of the Government land should await determination after the succession dispute is resolved by the appropriate forum. The Government Order additionally recorded that the grant in 1969 in favour of Yadullah Hussaini and not to the institution managed by him was not in order. On this premise, the grant in favour of his widow (the petitioner in W.P. No.5418 of 2002), was held unsustainable, an irregularity which may embolden the widow to claim the property as her own. The impugned proceedings of the State (in the penultimate paragraph) also ordered that the management of the Moula-ka-Pahad institution should be managed by a committee of persons to be nominated by the District Collector in consultation with the Minority Welfare Department, till such time that the pending dispute of succession to the institutions is determined by the civil Court. As the competitive claim by the petitioners herein to Government property of an extent of Ac.30.00 cents of land culminated in a government appointed management to the Moula-Ka-Pahad itself, both the petitioners are aggrieved and have filed these writ petitions challenging the order of the Government in directing a protectorate for the management of Moula-ka-Pahad. The petitioners have distinct grievances as regards the order of the State Government in the impugned Memo. While the petitioner in W.P. No.5928 of 2002 is aggrieved by the appointment of a committee of management to the Moula-ka-Pahad, the petitioner in W.P. No.5418 of 2002 is aggrieved that Order also denies her entitlement to grant of a Cowl in respect of the land in Kalicherla village. The State Government had absolutely neither authority nor a justification to appoint a committee of management to the religious denominational institution i.e. Moula-ka-Pahad at Kalicherla village, Peddamandyam Mandal, Chittoor District. That was not the issue or the dispute, which was presented for resolution to the State Government in the administrative appeal preferred by the petitioner in W.P. No.5418 of 2002. In the facts and circumstances of the case adverted to above, it is clear that the initial grant in the year 1945 as well as the subsequent grant in favour of Yadullah Hussaini in 1969 as well as the disputed grant by the Mandal Revenue Officer, Peddamandyam, in favour of the petitioner in W.P. No.5418 of 2002 on 29.12.1993 were all in purported exercise of the executive discretion contoured by Order 19(2) of the B.S.O. On a true and fair construction of the phraseology of Order 19(2) of the B.S.O, the conclusion is irresistible and inescapable as well that the grant cannot in favour of or to the benefit of any individual. The grant is only permitted for enabling creation of a public utility and for providing a public convenience, namely the creation of a public tope, for planting either fruit bearing or timber trees or to afford shade near a choultry or any place of public resort, for general accommodation and convenience or other beneficent purposes associated with such public purpose. After the initial grant in 1945 by the District Collector, Chittoor in conformity with the text and purposes of Order 19(2) of the B.S.O., the Mandal Revenue Officers of Madanapalle and Peddamandyam misconstrued the scope of Order 19(2) of the B.SO. as well as the purposes for which the original grant was made in 1945. In any event, a grant under Order 19(2) of the B.S.O. is not for the personal benefit of the grantee, but only to enable creation of public authority convenient for utility. The Mandal Revenue Officer, Peddamandyam, by his order dated 29.12.1993, but without prior sanction of the District Collector (as required by Order 19(2) of the B.S.O.), had issued the grant in favour of the petitioner in W.P. No.5418 of 2002 on the premise that she, being the legal heir of the earlier grantee, Yadullah Hussaini, and being childless with no one to look after her welfare, was eligible for such grant. In the considered view of this Court, the order dated 29.12.1993 of the Mandal Revenue Officer, Peddamandyam is contrary to the purposes for which powers are vested under Order 19(2) of the B.S.O. The order is also invalid and unsustainable as it is issued without the prior sanction of the District Collector. It is also invalid on substantive grounds since the Mandal Revenue Officer, Peddamandyam had made the grant in favour of the widow of Yadullah Hussaini not in terms of Order 19(2) of the B.S.O. but on extraneous grounds that the widow was destitute and required grant of this land for her welfare. Such is not the purpose for which a grant could be made under Order 19(2) of the B.S.O. On the aforesaid analysis and a careful consideration of the order dated 29.12.1993 of the Mandal Revenue Officer, Peddamandyam, the order dated 2.2.1996 of the Revenue Divisional Officer, Madanapalle, the order dated 22.12.1999 of the Joint Collector, Chittoor, the order dated 23.5.2001 of the Commissioner of Appeals and the order dated 8.3.2002 of the State Government, this Court declares: a) That the land in an extent of Ac.30.00 cents in S.No.392/1A of Kalicherla village, Peddamandyam, Chittoor is Government land but not a notified wakf land; b) Since the grant is in terms of and under Order 19(2) of the B.S.O. there cannot be a grant for the benefit of any individual or institution. The grant can only be and exclusively for the purpose of enabling the creation of public convenience or utility and no such grant can be hereditary nor can the legal heir of such grantee claim exclusively on the basis of any relationship with the grantee, a right to be granted afresh Government land under Order 19(2) of the B.S.O. c) In the peculiar facts and circumstances of the case, since the grant was initially made in the year 1945 to Ameenulah Hussaini for the purpose of plantation of tress along the road or pathway for the benefit of devotees of Moula-ka-Pahad and since the initial purposes of grant would have been amply fulfilled by this time, it is perhaps not necessary for further grants to be made only for the limited purpose of maintaining plantations, if any, already raised. This is particularly so, in the context of the fact that the petitioners in these two writ petitions are also rival claimants to succession to the Asthana-E-Maqdoomullahi at Cuddapah and Moula-ka-Pahad, at Kalicherla institutions and are engaged in recidivist disputes for control of the two religious institutions. In the context of such disputes, it would not perhaps be possible to effectively manage the plantations, which are intended to serve the devotees to Moula-ka-Pahad institution who are outside the theatre of conflict. It is therefore, in the fitness of things that the State Government and its agencies should consider retaining control, possession and management of this property; to maintain the plantation and nurture the same since the provision of a salutary habitat to devotees of any religious institutions is a part of the affirmative agenda of a government and such affirmative programmes need not be farmed out to private agencies. The order dated 08.03.2002 of the State Government directing the management of the Moula-ka-Pahad institution shall vest in a committee of persons to be nominated by the District Collector in consultation with the Minority Welfare Department does not follow from the administrative appeal presented to the State Government by the petitioner in W.P. No.5418 of 2002. At any rate, the State Government was not exercising any statutory right of appeal. It was an appeal by courtesy of an administrative dispensation under the Board Standing Orders. Such administrative appellate process does not clothe the Government with authority to interfere in the management of a religious institution. That portion of the order, dated 8.3.2002 of the State Government is accordingly quashed. With the above observations, these writ petitions are disposed of, but in the circumstances without costs. ___________________ GODA RAGHURAM, J. 1st April, 2009 bcj