Case: Director of Endowments, Government of Hyderabad &amp; Others Vs. Akaram Ali

1. The respondent filed a petition under Art. 226 of the Constitution in the High Court of Judicature at Hyderabad asking for a mandamus against the Director of Endowments of the Hyderabad Government. His prayer was that the Director be ordered to hand over the management and possession of a certain Dargah called the Dargah of Jehangir andPiran and also the adjoining "hereditary lands", together with the income and profits, to the respondent.2. The High Court granted the writ and the State of Hyderabad appeals.The High Court granted his prayer. Shripat Rao, J. held that the Firman of the Nazim ceased to be valid after the Constitution, therefore the possession of Government after the 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, supervision of the Department should be brought to an end. Consequently, as the respondents opponent was worsted in the civil litigation, and as the respondent had been out of possession for a generation and so could be assumed to have learnt a lesson, he should be placed in possession.possession.7. The facts that led up to the passing of the Firman are as follows. Disputes about the right to possession and supervision of the Dargah seem to have started about the year 1914, for it is the respondents case, as set out in his petition, that the supervision was handed over to Azam Ali by the Ecclesiastical Department in or about the year 1914. Further trouble arose in 1918 and a complaint seems to have been made to the First Taluqdar about undue police interference.This occasioned a letter from the Director of the Ecclesiastical Department to the Home Secretary onin which the Director suggested that the Dargah and its income should be kept under Government supervision till one or other of the various claimants established his right.8. Onthe same Director delivered what has been called a judgment. He set out the disputes between the various claimants and said that as the dispute was about title it would have to be decided by a Court of law and not by the Ecclesiastical Department of the State. He, therefore, directed that whoever was out of possession should go to the Courts to establish his rights.Then he proceeded to consider who were in possession and held that Mahbubali, Syed Hussain (the respondents brother) and Mohammed Jahangir, Mujawirs, were in possession before they were dispossessed and so decided that these three persons should be given possession and that the person out of possession should be directed to seek his remedy in a Court of law.9. The matter seems to have been sent up to the Nazim by the Ecclesiastical Department because onhe issued the following Firman in pursuance of a petition from thatenquiry of the case the said Maash need not be handed over to anyone. Let it remain in the supervision of the Government. I should be informed of whatever the results of the enquiry establishes so that proper orders may bewe have already indicated, the matter was agitated in the civil Courts. We need not trace the history of this litigation nor need we examine its fortunes from stage to stage. All we are concerned with is the final judgment which was given by the High Court.15. The suit was filed by Azam Ali who had been entrusted with the supervision of the Dargah by the Ecclesiastical Department in 1914 and who was removed in 1920. The present respondent Akram Ali was one of the defendants. When the matter reached the High Court the learned Judges found as follows :"The fact of the plaintiff" (Azam Ali) "or his ancestors or any of the descendants of the saint of the Dargah being a Sajjada is not established by the evidence. It is also not proved that there has been any other Sajjada in respect of this Dargah and that the office of Sajjadagi has been found or continued there ...... in our opinion the Sajjadagi of none of the defendants is proved.In fact, for the very reasons as given by us above none of the defendants is proved to be entitled to the office of Sajadagi. In the result, it is not proved that any one of the parties is entitled to the Sajjadagi. The objections to the evidence of the plaintiff apply equally to the evidence of the defandants and when the very existence of Sajjadagi in the Dargah Sharif is not proved, no. question remains as to who is the Sajjada.....It cannot be gainsaid that the evidence of the plaintiff is stronger and more weighty than the evidence of the defendants....If we were obliged to hold any one of the parties as Sajjada on the evidence produced, our judgement would have been in plaintiffs favour".The decisions of the lower Courts dismissing the plaintiffs suit were accordingly upheld.

Reasoning:
6. We do not intend to say anything about the facts of title and possession lest it prejudice further 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 ofand there is no. subsequent order of the Civil Courts removing the bar.Therefore, as he has no. present right to possession, no. mandamus can be issued. We do not mean to imply that writ would be the appropriate remedy if and when the respondent can establish a right to possession : that is a question that does not arise because in fact he has no. present right toare clear that the Constitution effected no.even if we accept all the respondents 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 right to be restored to possession if and when he established his rights in a Court a law.13. The High Court has relied on a decision of this Court inAmeerunnissa Begum v. Mahboob Begum, AIR 1953 SC 91  (B), and has held that the Firmans of the Nazim 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.The decisions referred to were considered inSyed Qasim Razi v. State of Hyderabad, AIR 1953 SC 156  (C) and the law laid down by the majority was this (page 161)."The effect of Art. 13(1) of the Constitution is not to obliterate the entire operation of the inconsistent laws of to wipe them out altogether from the statute book; for to do so will be to give them retrospective effect which they do not possess. Such laws must be held to be valid for all past transactions and for enforcing rights and liabilities accrued before the advern of the Constitution."That, in our opinion concludes thethat is no. what the Firman says. The respondents rights, if any, at the date of the Constitution, and now, are that he must establish his right to possession in a civil Court before he can ask to be put in possession. There is no. decision of a civil Court declaring the respondents right to possession, therefore, on that short ground he cannot get the writ he seeks.