Mohammad KhairuddIn S/O Mohd. HabibuddIn Vs. MoinuddIn S/O Pachulal Shaikh, - Court Judgment

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property - inam and wakf property - conversion of nature of property - section 6 of wakf act, 1995 - competent authorities allowed applications made by respondent nos. 1 to 3 for abolition of service inam in respect of suit properties and granted occupancy certificate to respondents - same was challenged by petitioner on the ground that the suit properties was declared as a wakf properties and within one year after such declaration, no challenge to such declaration was made by the respondents - therefore, the limitation being that of one year, nature of property cannot be changed later - hence, the present petitions were preferred against the orders of the competent authorities - respondents contended that suit properties were service inam lands and the same was abolished and was vested with the government - held, under section 6 of wakf act, if any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a shia wakf or sunni wakf, the board or the mutawalli of the wakf or any person interested therein may institute a suit in a tribunal for the determining such question - decision of the tribunal in respect of such matter shall be final - proviso thereunder lays down that no such suit shall be entertained by the tribunal after the expiry of one year from the date of the publication of the list of wakfs - in the present case, the suit property was declared as wakf and declaration in respect of this which was published in the official gazette was not objected within one year limitation period - hence, judgments of the deputy collector and the additional commissioner to convert the wakf property into private property by abolition of inams and declaring respondent nos. 1 to 3 as occupants cannot be upheld - writ petitions allowed - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - the relevant date is 1.7.1960. 6. it is argued that the deputy collector has come to a conclusion that in the present case the inam is not granted for religious institution like dargha, masjid or mosque, but it is for rendering services of kazi (kazat) to the particular community service. it is not disputed that the said lands are taken into custody by the government and are given on eksal laoni (for yearly cultivation). it is argued that this order of the additional commissioner has attained finality and the observations reproduced above clearly indicate that the lands in question are excluded by section 1 (2)(ii) of the abolition of inams act.p.r. borkar, j.1. these two petitions present almost identical questions of fact and law and, therefore, can be conveniently disposed of with the common judgment. in both these petitions the orders passed by the additional commissioner, aurangabad division, aurangabad in case no. 1993/wtn/a/6 and case no. 1993/wtn/a/7, decided on 14.9.1994, which thereby confirmed the orders passed by the deputy collector (l.r.) latur in case no. 92/tnc/cr/66 and case no. 92/tnc/cr-67, decided by common judgment on 30.11.1992 are under challenge. both authorities allowed the applications made by present respondent nos. 1 to 3 in both matters for abolition of service inam in respect of lands survey no. 112 (corresponding block no. 265) and survey no. 113 (corresponding block no. 264) of village takli bardapur, taluka latur and declaring respondent nos. 1 to 3 as occupants of said lands under the provisions of the hyderabad abolition of inams and cash grants act, 1954.2. thus the challenge is to the orders of abolition of service inam and declaring respondent nos. 1 to 3 as occupants of the abovesaid lands and to grant them occupancy certificates under the provisions of the hyderabad abolition of inams and cash grants act, 1954 (hereinafter referred to as, 'the abolition of inams act'). 3. it is argued before this court that the lands in question were inam lands. the present petitioner who was original opponent was inamdar. the inam was not madad mash inam. the same could not have been abolished, as it was service inam land and the orders passed by both authorities are illegal and not based on the evidence on record. 4. section 1(2)(ii) of the abolition of inams act is as follows:1. short title, extent and commencement:(1) ... (2) it extends to [the hyderabad area of the state of maharashtra] and shall be applicable to all inams excepti) inams held by or for the benefit of charitable and religious institutions; (ii) inams held for rendering village service useful to the government or to the village community including sethsendhi, neeradi and balutha inams. thus it is argued that the nature of inam involved in the present case is such that it could not have been abolished under the abolition of inams act.5. shri s.s.choudhary, advocate appearing for respondent nos. 1 to 3 argued that under section 2(c) inam is defined as follows:2. definition.(a) ... (b) ... (c) inam means land held under a gift or a grant made by the nizam or by any jagirdar, holder of a samasthan or other competent grantor whosoever, whether subject to the sovereignty of the nizam or not and continued or confirmed by virtue of a muntakhab or other title deed, with or without the condition of service and whether or not coupled with the remission of the whole or part of the land revenue thereon and entered as such in the village records and includes:shri choudhary, advocate stated that the present respondent nos. 1 to 3 are kabiz-e-kadim as they were holders of inam land, other than inamdars, who were in actual possession of the property since prior to 1950 and as such they would be entitled to occupancy certificate as they were in possession of the property on the date appointed under section 3 of the abolition of inams act. the relevant date is 1.7.1960.6. it is argued that the deputy collector has come to a conclusion that in the present case the inam is not granted for religious institution like dargha, masjid or mosque, but it is for rendering services of kazi (kazat) to the particular community service. it is argued before this court that this inference that inam was for rendering service of kazi (kazat) to the particular community service is totally wrong and it is not the case of anybody. my attention was drawn to first para of original applications filed by respondent nos. 1 to 3 to the collector for abolition of inam and for issuing occupancy certificate to them. in the first para it is stated that the lands were formerly granted to one mohd. khairuddin s/o hapujoddin for rendering service of niyaj janab rasool karim sallela alicoa salam in the year 1305 fasli and the government of nizam has issued one sanad known as muntakhab in the name of mohammad khairuddin. the applications are at exh. a with the petitions. it is further mentioned in paras 4 and 5 so also in prayer clause that the land is a service inam land.7. mrs. ansari, advocate also drew my attention to copy of muntakhab produced in the trial court and stated that the purpose of grant of inam was niyaj janab rasool karim sallela alicoa salam and for this purpose inam of 180 bigha was granted. thus copy of muntakhab shows that the inam was not for performing duties of kitabat kazi. 8. shri patil, advocate for the petitioner and mrs. ansari, advocate for respondent no. 4 also relied on the v.f. 7/12 extracts produced on record. kabjedar column show words, niyaz-e-rasool khidmatgar and then there are names of inamdar. so it is argued that the basis on which the deputy collector or the additional commissioner had passed orders was wrong. it was incorrect reading of the documents on record. 9. it is further argued that the names of respondent nos. 1 to 3 who were claiming to be tenants were not shown in ownership column of 7/12 extract or pahani patrak of the year 1959-60 or 1960-61 as mentioned by the deputy collector. at this stage, learned advocate for respondent nos. 1 to 3 shri choudhary argued that the names of the predecessor-in-title of respondent nos. 1 to 3 are in other rights column. so fact remains that they are not in ownership column as stated by the deputy collector in his order. the names of respondent nos. 1 to 3 or their predecessor-in-title are not in pahani patrak. there is only mention as niyaz-e-rasool khidmatgar and habibuddin mahaboobuddin as inamdar and names of his heirs in kabjedar column.10. it is pointed out that respondent nos. 1 to 3 have produced a list of protected tenants on record, but it is argued by learned advocate for the petitioner that the deputy collector and the additional commissioner have not considered the foot note. it is specifically mentioned in the list of protected tenants at the foot that certificates were not issued to persons at sr. nos. 1 to 13 as they were inam lands. however, certificate are issued to the persons at sr. nos. 14 to 16. the lands in dispute are in between at sr. nos. 1 to 13 in respect of which no certificate was issued.it was a list prepared under section 38e of the hyderabad tenancy and agricultural lands act, 1950 declaring the ownership rights of tenants as on 1.2.1957. the list is regarding takli bardapur, taluka latur. so it is argued that the respondent nos. 1 to 3 are not protected tenants in view of the foot note.11. mrs. ansari, advocate also pointed out that though the abolition of inams act came in force in the year 1954, no application was given by respondent nos. 1 to 3 till the year 1991. 12. it is further argued that in this case respondent nos. 1 to 3 concealed material facts from the deputy collector and the additional commissioner while filing application for granting them occupancy rights and it is the order passed by the additional commissioner in case no. 75/rev.a.75 decided on 24.1.1990 produced at exh. d with the petitions. that was a matter of forfeiture of inam in respect of properties involved in these two matters. the additional commissioner in his order observed that the lands were service inam lands, the tenancy law is not applicable to these lands and, therefore, contention of present respondent nos. 1 to 3 that they were declared owners (as tenants) was wrong and, therefore, the appellants have no right to remain in possession of these lands nor entries of their name have any sanctity. the suit lands are service inam lands, as is evident from the 7/12 extract and succession enquiry under section 5 of the hyderabad atiyat inquiries act, which is pending before the deputy collector on the application of heirs of earlier inamdar, deceased habibuddin mehboobuddin.13. so with aforesaid observations the additional commissioner has further observed that since those were service inam lands, the said lands were attached and taken into government supervision. it is not disputed that the said lands are taken into custody by the government and are given on eksal laoni (for yearly cultivation). it is argued that this order of the additional commissioner has attained finality and the observations reproduced above clearly indicate that the lands in question are excluded by section 1 (2)(ii) of the abolition of inams act. 14. mrs. ansari, advocate drew attention to say filed by the wakf board, which is respondent no. 4 in these petitions. the suit lands are declared as wakf properties. they are shown as service inam lands. the services of niaz-e-rasool were continuously performed by the forefathers of the inamdar. respondent no. 4 has taken clear stand that these are wakf lands. in the maharashtra government gazette dated 14.2.1974 part a, aurangabad division on page 51, there is entry at sr. no. 24 declaring the lands involved in the present dispute as wakf property and therein it is also specifically mentioned that inam lands s. nos. 111, 112, 113, 115 and 116 of takli bardapur in latur taluka are meant for niaz-e-rasool. niaz is being performed by the inamdars at manjlegaon and this is certified by the tahsildar, majalegaon.15. it is argued before this court that under the wakf act, 1995, inquiry was held and the properties have been declared as wakf properties. within one year after declaration in the official gazette no challenge was made to the declaration that suit properties are wakf properties by present respondent nos. 1 to 3. the limitation is of one year and in these circumstances, the nature of property cannot be changed. it is also argued that since these are inam and wakf properties, their nature cannot be changed.16. under section 6 of the wakf act, 1995, if any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a shia wakf or sunni wakf, the board or the mutawalli of the wakf or any person interested therein may institute a suit in a tribunal for the decision of the question and the decision of the tribunal in respect of such matter shall be final. the proviso thereunder lays down that no such suit shall be entertained by the tribunal after the expiry of one year from the date of the publication of the list of wakfs. the result of the judgments of the deputy collector and the additional commissioner is to convert the wakf property into private property by abolition of inams and declaring respondent nos. 1 to 3 as occupants. all this was done in absence of wakf board being party before the authorities below. this itself becomes a sufficient ground to set aside the orders of both the authorities below.17. attention is also drawn to section 102a(c) of the hyderabad tenancy and agricultural lands act, 1950. 102a. nothing in the foregoing provisions of this act shall apply-(a) ... (b) ... (c) to service inam lands; so it is clear that the provisions of the hyderabad tenancy and agricultural lands act, 1950 do not apply to the lands in question. the fact that the properties are wakf properties was never challenged by respondent nos. 1 to 3. the same was not considered either by the deputy collector or the additional commissioner before giving the declaration that inam is abolished and respondent nos. 1 to 3 are occupants and the certificate to that effect be issued to them. so considering the totality of the circumstances, the orders passed by the deputy collector and the additional commissioner are not sustainable in law and therefore, deserve to be set aside.18. one more aspect that was also not considered is that present petitioner mohammed khairuddin had made application under the hyderabad atiyat inquiries act, 1952 for declaring him as heir. copy of the order is produced on record. it is styled as 'virasat sanchika no. 1988/inam/4. the inquiry was made in about 1991. however, it is clear that the muntakhab was registered at sr. no. 388 in 1297 fasli. name of khairuddin s/o hafizoddin was mentioned as original inamdar. thereafter there was name of maheboob mahaboboddin and thereafter there was name of mir khairuddin. there is no dispute that the present petitioner is inamdar. even in this document it is mentioned that inam was for niaz-e-rasool. in other words, it is for service of mohammad prophet. it is explained that for giving feast on the birth date of prophet mohammad the inam was created and the land was granted. this document also shows that from 1975 the property was in possession of the government and every year the land was given for cultivation for a period of one year. this document also explains how the petitioner became inamdar. it is argued before me that this document shows the inquiry under the hyderabad atiyal inquiries act. attention was also invited to section 2(1)(b), which defines 'atiyat grants and it includes inams to which hyderabad atiyat inquiries act, 1954 is not applicable. section 2(1(c) defines muntakhabs and vasiqas. it is argued that if we consider sections 3 and 5 of the atiyat inquiries act, 1952, it is clear that the present inam is one which is not governed by the abolition of inams act, but it is one which is covered by the atiyat inquiries act and, therefore, previously there was inquiry under said act. all these aspects were not considered by the deputy collector or the additional commissioner.19. in view of the above said reasons, in my opinion, the impugned judgments and orders passed by the deputy collector (l.r.) latur on 30.11.1992 and by the additional commissioner, aurangabad division, aurangabad on 14.9.1994 deserve to be set aside.20. in the result, both the writ petitions are allowed. the judgments and orders passed by the deputy collector (l.r.) latur on 30.11.1992 and by the additional commissioner, aurangabad division, aurangabad on 14.9.1994 are set aside. the applications filed by respondent nos. 1 to 3 for abolition of inam by declaring them as occupants and for issuance of occupancy certificates are hereby dismissed. rule is made absolute accordingly. in the circumstances of the case, the parties are directed to bear their own costs.