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Director of Endowments Government of Hyderabad & ors. Versus Akram Ali

1955 (4) TMI 43 - SUPREME COURT OF INDIA

Appeal (Civil) 19 of 1955 - Dated:- 22-4-1955 - B. K. Mukherjee (CJ), V. Bose, B. Jagannadhadas, T. L. Venkatarama Aiyyar And S. J. Imam, JJ. JUDGMENT V. Bose, J. 1. The respondent filed a petition under Article 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 Darga .....

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the Ecclesiastical Department of the State stepped in and entrusted the supervision of the Dargah to one Azam Ali. He was removed in 1920 and the Ecclesiastical Department took over the supervision under a Firman of the Nizam which directed the Department to supervise the Dargah until the rights of the parties have been enquired into and decided. The respondent states that these rights were investigated by the civil Courts. The matter went up to the High Court and the decision all through was i .....

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as 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, the supervision of the Department should be brought to an end. Consequently, as the respondent's 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, 5. The learned Attorn .....

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Saheb, his grandfather, was proved and that it was also established that Syed Mir Saheb was a hereditary Sajjada of the Dargah. All this is, in our opinion, beside the point. The petition and the appeal can be disposed of very shortly on another ground. 6. We do not intend to say anything about the facts of title and possession lest it prejudice future litigation, should there be any. We will assume, without deciding, that all that the respondent says about his hereditary rights and his possess .....

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in fact he has no present right to 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 respondent's 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 .....

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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 respondent's 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 .....

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ssed". 10. Now the Nizam was an absolute sovereign regarding all domestic matters at that time and his word was law. It does not matter whether this be called legislation or an executive act or a judicial determination because there is in fact no clear cut dividing line between the various functions of an absolute ruler whose will is law. Whatever he proclaimed through his Firmans had the combined effect of law and the decree of a court: see the judgment of this Court in -'Ameerunnissa .....

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had twice spoken, that is to say, if there was a right to possession it was held in abeyance till established by the civil Courts. 11. Now, as we have said, the Nizam was at that time an absolute ruler and could do what he pleased. His will, as expressed in his Firman, was the law of the land. Therefore, even if it be assumed that the respondent was in possession, his rights to immediate possession, whatever they may have been, were taken away and held in abeyance till he could establish them in .....

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itution only guarantees to a citizen such rights as he had at the date it came into force; it does not alter them or add to them: all it guarantees is that he shall not be deprived of such rights as he has except in such ways as the Constitution allows. But if the Nizam could take away every vestige of right by a Firman he could equally take away a part of them and at the date of the passing of the Constitution the respondent would only have the balance of the rights left to him and not the whol .....

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hat the Firmans of the Nizam 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 in - 'Syed Qasim .....

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the Constitution' ". That, in our opinion concludes the matter. 14. The only question that remains is whether the respondent has obtained a decision in the civil Courts confirming his right to get possession of the Dargah plus whatever else the Ecclesiastical Department took over under the Firman. As we 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 con .....

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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 founded 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 .....

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