TMI Blog2012 (4) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... nd no appeal shall lie against the decision or order whether interim or otherwise given or made by the Wakf Tribunal (Sections 83(2), (7) and (9) of the Wakf Act, 1995 (the Wakf Act). Nonetheless the proviso to Section 83(9) of the Wakf Act vests revisional jurisdiction in the High Court to call for and examine the records relating to a decision or order of the Wakf Tribunal, for the purpose of satisfying itself as to the correctness, legality or propriety of such an order. The provision enables the High Court to confirm, review or modify the decision impugned. The civil revision petitions, as mentioned at the outset, are curiously filed under Article 227 of the Constitution. When statutory forum is created for redressal of grievance, even if it is High Court, a revision under Article 227 is not maintainable (Sadhana Lodh v. National Insurance Co. Ltd. (2003) 3 SCC 524 : AIR 2003 SC 1561) and Raj Kumar Shivhare v. Directorate of Enforcement (2010) 4 SCC 772). The brief background facts culled out from CRP No. 1384 and C.R.P.No. 4958 of 2007 are the following (parties referred to as arrayed in the first petition). The Dargah; managed by a committee, is a registered Wakf. It was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stered wakf properties attached to the Dargah; to declare the sale deeds in favour of respondents as null and void; direct the official respondents to take action to preserve and protect the lands under the management of Wakf Board and direct all the allottees to deliver possession of the land to the Wakf Board or Dargah. Along with the said suit, two interlocutory applications -being I.A.No. 521 of 2007 seeking an interim injunction restraining the allottees from transferring the land or in any manner part with possession; and another being I.A.No. 522 of 2007 for an interim injunction restraining the allottees of land from making any construction or altering physical features of the land were filed. On 04.10.2007, the Wakf Tribunal passed following order in I.A.No. 521 of 2007. Upon the motion made unto this Tribunal by Sri B. Nalin Kumar, Advocate for the petitioners/plaintiffs. Heard. Perused the affidavit petition and documents filed which reveals that the suit schedule land admeasuring Ac. 1654.32 guntas situated at Manikonda Jagir Village, Rajendranagar Mandal of Ranga Reddy District is notified Wakf land. The respondents Nos. 9 to 15 are in unlawful possession of the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o file memo of appearance on behalf of R.1, R.4 to R.7 and R.16. Sri C. Kodanda Ram, Advocate filed vakalat for R.10 and R.14. Sri V. Vijay Kumar, Advocate filed vakalat for R.11. Sri D. Pavan Kumar, Advocate filed vakalat for R. 12. Sri N. Harinath Reddy, Advocate filed memo offering vakalat for R.13. R.15 called absent. No representation. Notice awaited. Counter filed by R.1, 4 to 7, 16 and R.10. Heard the counsel on record. The counsel for petitioner filed a memo to extend the interim order dated 04.10.2007. The respondents companies and the Government of A.P., opposed the same. The respondent No. 2 A.P. Wakf Board and Respondent No. 3 Dargah requested to extend the interim orders. The specific contention of Respondents/companies and the Government of A.P., is that in the light of the interim orders passed in Writ Appeal No. 796, 805 and 826/2007 on 26.10.2007, the interim order dated 04.10.2007 cannot be extended. Some of the respondents have not filed counters yet. The counsel for petitioners want time to go through the interim order passed in Writ Appeal and submit arguments in this I.A. The respondents/companies have vehemently contended that the land shown in suit sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.2007, the Division Bench set aside the order of the learned single Judge observing that, if the construction is stopped, thousands of workers and other employees would be deprived of livelihood and the allottees would suffer irreparable injury in as much as they will have to stop the ongoing projects, some of which are at the stage of completion . The Dargah also instituted O.S.No. 7 of 2011 before the Wakf Tribunal for recovery of possession of Manikonda lands (described in Schedules A to K of the plaint) and for damages and compensation for wrongful use of the properties by respondents 2 to 15 herein. The basic pleadings in this suit are similar to those in the suit filed by the persons interested. The Dargah's case fount, among others, is the A.P. Gazette No. 6A dated 09.02.1989 with its addendum dated 06.04.2006. An interlocutory application being I.A.No. 24 of 2011 was filed under Order XXXIX Rules 1 and 2 and Section 151 of Code of Civil Procedure, 1908 (CPC) and Section 83(5) of the Wakf Act. An ad interim injunction was sought restraining respondents 2 to 10 and 12 to 15 from alienating or transferring any part of the Manikonda lands which was transferred to them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date anterior to publication. He would next argue that in the writ petition filed by another person interested, the Division Bench reversed the learned single Judge who has passed order injuncting construction; the Special Leave Petition against the order of the Division Bench having been dismissed, the factors in relation to balance of convenience, which weighed with the High Court ought to have been applied by the Wakf Tribunal. According to senior counsel, when there are no changed circumstances when the Division Bench permitted construction, the order of the High Court could not have been ignored. Lastly, he would submit that the petitioner availed loans to the tune of ₹ 1200 crores from the consortium of eight schedule banks, the construction reached the stage of delivering possession to the resident and non-resident buyers and if the petitioner is restrained from alienating the property, it would result in hardship besides causing significant loss to the State exchequer. He would also point out that in lieu of an injunction, Wakf Board can always be compensated in terms of money after final adjudication of the suits. Sri D. Prakash Reddy, senior counsel for petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x facie relevant aspects or gave importance to irrelevant factors. The point for consideration whether the impugned order suffers from any illegality or impropriety, can be dealt with reference to the three distinct submissions made by the petitioners. Before doing so, we feel, that a short odyssey into applicable principles is necessary. Common Law Principles A judicial remedy for redressal of civil legal injury is either declaration, specific performance, injunction or award of specified amount. Injunctions are non-monetary remedies in rem. They are available at the stage of pre-trial, pendente lite and post-trial. The pre-trial and pendente lite injunctions last till the conclusion of the trial and final Judgment, requiring the defendant to do or not to do something during the pendency of the trial. An interlocutory injunction is intended to protect the right of the plaintiff till uncertainty is resolved. They are ordinarily awarded quia timet where no injury as such resulted but there is a threat of legal injury. Injunctions awarded quia timet are very effective in immovable property disputes when the defendants plead possession of the subject matter or is likely to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial, but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainly were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where the balance of convenience lies. The view of House of Lords that injunction can be denied by adequately compensating the plaintiff, however, has been diluted by subsequent decisions of English Courts, which substantially restored the practice of not denying the interlocutory injunction to the plaintiff satisfying the triple test (paragraphs 19.191 to 19.195 - Volume II 'English Private Law' edited by Professor Peter Birks, Oxford University Press, 2000). Statutory Principles The civil judicial process in India is; by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinuation of breach of contract or other injury of any kind. Case Law There is voluminous case law on the subject. We would, however, refer to a Judgment of this Court and two decisions of Supreme Court. In S. Radhakrishna Murthy v. K. Narayanadas AIR 1982 AP 384, a Division Bench of this Court, after analyzing Indian and English decisions held as under. What emerges from the above conspectus is that the grant of interlocutory injunction is a discretionary remedy and in the exercise of judicial discretion, in granting or refusing to grant, the court will take into reckoning the following as guidelines: (1) Whether the persons seeking temporary injunction has made out a prima facie case. This is sine qua non. (2) Whether the balance of convenience is in his favour that is whether it could cause greater inconvenience to him if the injunction is not granted than the inconvenience which the other side would be put to if the injunction is granted. As to that the governing principle is whether the party seeking injunction could be adequately compensated by awarding damages and the defendant would be in a financial position to pay them. (3) Whether the person seeking temporar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to satisfy that non-interference by the Court would result in irreparable injury to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that the balance of convenience must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which do not fall in first two categories cease to be wakfs or their properties lose the character of being wakf properties. In Muslim law, the wakf property always remains the same notwithstanding anything or anybody claiming or disputing the nature of the property. If the property is notified under 1954 Act or 1995 Act as wakf property, it is conclusive evidence of being so unless and until it is declared otherwise by a Court or statutory Tribunal, in accordance with the provisions of the Act. The Dargah marked the Gazette Notification dated 09.02.1989 as Ex.P. 1 and the errata Notification dated 06.04.2006 as Ex.P.4. Under Ex.P.1 issued under 1954 Act, the Wakf Board notified the land and structures in survey Nos. 262, 261 and 260/1 as the wakf known as Dargah Hazrath Hussain Shah Wali, Hyderabad. Under Ex.P.4, an errata was issued to Ex.P.1, notifying Acs. 1,654.32 guntas in survey Nos. 196 to 229, 231 to 237, 240, 241, 243, 244, 246 to 252, 254, 256 to 260, 262 to 266 of Manikonda village as wakf property duly modifying the entries in columns 10, 11 and 12 of Ex.P.1. Unless these two notifications are declared invalid, prima facie the Manikonda lands are wakf properties. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands are Dargah property, and officials were advised to take all necessary steps not to permit any constructions; and to take steps to see that the land allotted to third parties is not utilised. Both these letters also refer to Exs.P.4, P.9 and P.10. The statutory notifications (Exs.P.1 and P.4.), the three documents prior to Ex.P.4, (Exs.P.5, P.9 and P.10), and the three Government documents immediately after Ex.P.4 (Exs.P.12, P. 13 and P.14) would clinch the prima facie case of the Dargah (the plaintiff) in O.S.No. 7 of 2011. Indeed, in the interlocutory order, dated 20.09.2007, in W.P.M.P.No. 21993 of 2007 in W.P.No. 17192 of 2007, which was marked as Ex.P. 18, the learned single Judge of this Court also referred to the same documents as above and came to the following conclusion. As per the scheme of the Wakf Act and as per the Judgment of the Apex Court in AIR 1998 Supreme Court, page No. 972, it cannot be said that the said properties are not wakf properties and that they are the government properties. Once the property has been notified under Section 5(2) of the Wakf Act based on the report submitted by the Survey Commissioner of Wakf under Section 4(3) of the Wakf Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blication. We are not impressed with this. A plain reading of Sections 4 and 5 would show that the publication in the Official Gazette of the list of wakfs based on the report of the Survey Commissioner under Section 4(3) need not be a one time affair. The same report of the Survey Commissioner could be the basis for number of notifications under Section 5(2) and even in relation to one wakf, there could be different notifications. This view derives further support from Section 40, which empowers the Wakf Board to make enquiries on its own and register the wakf property. What is the effect of Ex.P.4, errata notification? Does it relate back to the date of Ex.P.1, the original notification or from the date of publication of Ex.P.4? It is settled law that an errata published always dates back to the date of initial publication. In State of Tamil Nadu v. Mahalakshmi Ammal (1996) 7 SCC 269, the following observations are made. It is true that the Government having realised that the lands were initially notified to be acquired but did not cover the survey numbers being situated in the adjacent villages, the errata notification was published and included to lands in Surveys Nos. 2/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on) Rules, 1995. It was contended that Section 40 does not expressly confer power on the Central Government to make Rules with retrospective effect. Accepting the same, a Division Bench of the Supreme Court held. As it is Section 40 of the Act which empowers the Central Government to make rules, the rules would have to conform to that section. The extent and amplitude of the rule-making power would depend upon and be governed by the language of the section. If a particular rule were not to fall within the ambit and purview of the section, the Central Government in such an event would have no power to make that rule. Likewise, if there was nothing in the language of Section 40 to empower the Central Government either expressly or by necessary implication, to make a rule retroactively, the Central Government would be acting in excess of its power if it gave retrospective effect to any rule. The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the profits for the benefit of humanbeings (Vidya Varuthi v. Baluswami AIR 1922 PC 123). When a founder dedicates the property for a wakf, the ownership of the founder is completely extinguished. When once it is declared that a particular property is wakf or any such expression is used implying wakf or the document shows that there is dedication for a pious or charitable, the right of the person is extinguished and the ownership is transferred to the Almighty. Though Mutawalli is the Administrator, Governor, Superintendent or curator of the wakf property, he has no right in the property belonging to the wakf. The property is not vested in Mutawalli and he is not a trustee in the technical meaning of the term (Vidya Varuthi). The dedication need not specifically be in favour of a place of worship, kankah, Dargah, cemetery etc. It is enough if the dedication is made for the purpose recognised by Muslim law as pious, charitable or religious (Sayyed Ali v. A.P. Wakf Board, Hyderabad (1998) 2 SCC 642). An overall view of the evidence on record is to be taken to establish that there is a permanent dedication of the property as a wakf (Sayyed Ali). Service inam granted to individuals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 would not suffer any injury and on the other hand, if injunction order is not vacated, the Lanco Hills will have to stop the ongoing projects, some of which are at the stage of completion, and that stopping the construction would result in depriving the thousands of workers and other employees of their livelihood who are engaging in the construction and other activities undertaken by the Lanco Hills . Here, we may passingly mention that in I.A.No. 521 of 2007 in O.S.No. 99 of 2007, the Wakf Tribunal passed an order on 04.10.2007 restraining the petitioner from alienating any part of the land to third parties until 18.10.2007. On 01.10.2007, the said order was extended till 19.11.2007. When the matter was considered on that day, Ex.P.19 was brought to the notice of the Wakf Tribunal. Before us, it is submitted that in view of the orders in Ex.P.19 permitting construction, any restraint from alienating the constructed buildings/space would be contrary to the High Court order. We are afraid we are not able to persuade ourselves with this submission. Ex.P.18 is order, dated 20.09.2007 passed by the learned single Judge in W.P.No. 17192 of 2007 filed by Mr. H.A. Rahman. He prayed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties. Any sale would be certainly hit by doctrine of lis pendens and void under Section 52 of the Transfer of Property Act, 1882. Further the third parties might also raise loans from the Banks and the public interest would further suffer. The attention of this Court is invited to Ex.P.20, dated 01.01.2011 which is an advertisement issued by the petitioner offering to own ready-to-move-in Exquisite Apartments for sale. Be it recalled that as per petitioner's additional affidavit, 950 such apartments are completed and construction of 850 apartments are in progress. There is no dispute that the petitioner was allotted land for developing IT park. It is quite incomprehensible as to how the petitioner was permitted to construct residential apartments/flats in the land allotted to them contravening the terms of allotment. When the Division Bench in Ex.P.19 permitted the construction of only IT park, Ex.P.20 advertisement would show that the Division Bench order was seemingly flouted by constructing and offering the residential apartments to the public. Thus, prima facie petitioner after getting favourable order from this Court only for construction on the disputed land d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injustice may result from his deciding the application one way rather than the other. (emphasis supplied) In such circumstances, in this case, we are afraid we cannot assume balance of convenience in favour of the petitioner. If the denial of injunction to the plaintiff has an effect of putting the defendants in an advantageous position, the Court, in our considered opinion, ought to issue an injunction in favour of plaintiff. In this regard, we may extract the following observations of Lord Jessel from Aynsley v. Glover (L.R. 18 Eq. 544) as quoted in Nelson's Law of Injunctions (6th edn., 2010, I, pp.736-737). At all events, this being an interlocutory application let me continue my building, and I will undertake to pull down if the Court shall so think fit. That is a very specious argument to address to the Court, but one must have regard to the effect of allowing such a proceeding. Supposing a defendant erects a building at great cost, when he comes to the hearing he will say to this Court. 'Compare the injury to me, in pulling down the building, with the injury to the plaintiff in allowing the building to remain'. Ought or ought not the Court to give weight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds The petitioner statedly availed enormous amount of loans from a consortium of about dozen Banks besides investing its equity in the project. The senior counsel would submit that the effect of not permitting alienation to prospective buyers would be irreparable as the larger public interest - repayment of loans to the Bank would be hampered. According to him, it will have long lasting adverse effect of discouraging the IT enterprises in setting up their business in the constructed space. We are afraid the possibility of something turning topsy turvey or leaving so called long lasting adverse effects cannot overweigh or eclipse the majesty of rule of law. Stakes, however, big, they might be, would not and cannot dilute the axiomatic principles in granting injunction. We may make reference to a case decided by Lord Denning M.R., in Bradbury v. London Borough of Enfield (1967) 3 All ER 434. In Bradbury, the Court of Appeal dealt with an application for judicial review seeking an injunction restraining Borough Council from ceasing to maintain the grammar, technical and secondary schools. In 1965, it was decided to adopt a system of secondary education by introducing new system ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be upheld. Surely the Constitution must take precedence over convenience and a judge may not turn a bureaucrat. We do not mean to suggest that creation of a chaotic state of administration is not a circumstance to be taken into account. It may be possible that in a given set of circumstances, portentous AIR 1986 SC 210 administrative complexity may itself justify a classification. But, there must be sufficient evidence of that - how the circumstances will lead to chaos. (emphasis supplied) When the Court exercises auxiliary jurisdiction to provide remedy of injunction, it has to be strict in exercising equity without ignoring the basic that equity follows the law (Halsbury's Laws of England, Fourth Edition Reissue, 1991, Volume 16(2)). Thus, the business loss, the repayment of the bank loans, the colossal structures constructed are not much relevant if ultimately the Court comes to a conclusion that a larger public interest would be subverted by allowing a party to do something which prima facie was not authorised or was done in breach of Court order. Therefore, on this aspect, we are not able to countenance any of the submissions of the petitioner. Monetary compens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, the CEO could not have done so. No material is placed before us to say that there was any valid resolution or authorisation by the Wakf Board advising its CEO to make a statement as above. Even otherwise, we are convinced that the said statement would not hold good for the purpose of these cases, for two reasons. First, the Division Bench while directing the construction to go on, thought it fit the matter itself can be disposed of expeditiously and directed to list the matters for hearing on 03.12.2007. It did not happen. Secondly, as we already concluded supra, the order in Ex.P.19 permitting construction by the petitioner cannot be read as also enabling them to alienate the property a portion of which is constructed contrary to the allotment letter, i.e., construction of residential flats which were offered for sale in Ex.P.20, advertisement. In a given case, if the plaintiff has acquiesced in the defendant's conduct and allowed the latter to incur expenditure, there could be plausible argument to infer 'balance of convenience' against the plaintiff. Acquiescence by the plaintiff, however, is not always a bar. If the plaintiff under a wrong assumption recognis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly be done after satisfying the conditionalities under Section 51(2), namely, such transaction is beneficial to the wakfs, in consistence with the objects of the wakf and consideration thereof is reasonable and adequate. Therefore, we are inclined to accept the submission of the Dargah and Wakf Board that the statement made by the CEO in the writ proceedings has no bearing on the question of balance of convenience' at the time of considering the issue of permitting the petitioner to alienate the property. In C.R.P.No. 1444 of 2011, the plea of the petitioner prima facie is well founded. The land in survey No. 266 of Manikonda lands was deleted and was included in the Nacharam Revenue Records correlated to survey Nos. 27/1, 27/2, 27/3 and 27/4. This was not adverted to by the Wakf Tribunal while passing a general order of injunction. As there is no serious dispute about this, we are of the considered opinion that the issue can be finally decided by the Wakf Tribunal in the suit. The petitioner, who entered into the development agreement with the land owners, may have to approach the Wakf Tribunal for necessary clarification in this regard, with reference to Section 52 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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