The Ashoor Khana Hazarath Abbas v. Government of Andhra Pradesh, Minorities Welfare (Waqf–1) Department

Order

This Writ Petition is filed by the petitioner – The Ashoor Khana Hazarath Abbas, a registered Waqf Institution, represented by its Mutawalli Shaik Hussain Saheb, seeking issuance of Writ of Mandamus to declare the Memo No.4076/Waqf-1/A2/2007-3, dated 12-08-2008, issued by respondent No.2 – Government of Andhra Pradesh, Minorities Welfare (Waqf–1) Department, at the instance of respondent No.1 – A.P. State Waqf Board as illegal, irregular, unconstitutional, violative of principles of natural justice, unjustified, unsustainable and consequently set aside the same holding that the petitioner alone is entitled to carry on the operations in the total extent of Acs.5-84 cents of land in Survey Nos.288/1, 288/3 and 293 of Palukur village, Banaganapalle Mandal, Kurnool District.

2. The brief facts of the case of the petitioner are as under: a) The petitioner is a notified Waqf Institution as per the Gazette published in Andhra Pradesh Gazette, Part-II, dated 02-05-1963, at Serial No.1766. Shaik Hussain Saheb claims to be Mutawalli of the petitioner institution. Shaik Hussain Saheb’s grandfather and his grandfather’s brother viz., Hussain Saheb and Abdul Rasool Saheb, respectively, were Mutawallis of the petitioner institution on the date of the said Gazette notification and accordingly they were shown in the said Gazette. The properties notified in the said Gazette are agricultural lands consisting of Acs.7-92 cents in Survey No.176/1, Ac.1-78 cents in Survey No.288/1, Ac.1-06 cents in Survey No.288/3 and Acs.3-00 in Survey No.293, total admeasuring Acs.13-76 cents, of Palukur village, Banaganapalle Mandal, Kurnool District. b) After the death of Hussain Saheb and Abdul Rasool Saheb, Shaik Hussain Saheb continued as Mutawalli of the petitioner institution. By recognizing his functions as Mutawalli and his entitlement, respondent No.1 by order No.B3/39/KNL/2006, dated 26- 07-2006, appointed him as hereditary Mutawalli i.e., Towliath for the petitioner institution and its properties under Section 42 of the Waqf Act, 1995 (for short “the Waqf Act”). c) While so, there was a prolonged litigation with regard to granting of mining lease in favour of one Dubba Ramulu and A. Shekar Reddy in respect of the land admeasuring 0.72 hectares in Survey No.288/1 and 0.917 hectares of land in Survey No.293 of the said village belonging to the petitioner institution. The petitioner herein filed a writ petition before this Court and opposed the litigation created by the said two persons and ultimately succeeded therein. d) Further, it is the case of the petitioner that respondent No.1 vide proceedings in F.No.R4/Rent/12/KNL/2005, dated 29-09-2006, accorded permission to the Mutawalli of the petitioner institution for carrying out mining operations in the total extent of Ac.5-84 cents of land in Survey Nos.288/1, 288/3 and 293 on payment of Rs.8,000/- (Rupees eight thousand only) per acre per annum, total amounting to Rs.46,720/- (Rupees forty six thousand seven hundred and twenty only). Pursuant to the same, respondent No.3 – the Inspector Auditor, Waqf, Kurnool District handed over possession of the said land to the Mutawalli of the petitioner institution on 03-10-2006. Then onwards, the petitioner institution carrying on mining operations in the said land and regularly remitting the lease amount to respondent No.1 through respondent No.3. After meeting out the expenses of Royalty, Water Taxes, Electricity Charges, Labour Wages and Mineral Right Tax etc., out of the income derived from the mining operations, the remaining amount is being utilized by the Waqf Institution for providing necessary infrastructure and facilities to the Mussallies (devotees). e) Subsequently, the Assistant Director of Mines and Geology, Banganapalle, Kurnool District by proceedings No.3550/M4/2006, dated 25-04-2007, granted mining lease to the petitioner institution pursuant to the proceedings of the Deputy Director of Mines and Geology, dated 12-04-2007, for quarrying operations in an extent of 0.492 hectares in Survey No.288/3, by proceedings No.3551/M4/2006, dated 17-08- 2007 in an extent of 0.720 hectares in Survey No.288/1 and by proceedings No.3549/M4/2006, dated 17-08-2007, in an extent of

1.214 hectares in Survey No.293 of Palukur village, Banaganapalle for a period of 10 (ten) years. The Assistant Director of Mines and Geology also executed necessary lease deeds in favour of the petitioner in the prescribed Form-G. f) While the matter stood thus, on the request of respondent No.4 and at the instance of respondent No.1, respondent No.2 issued the impugned Memo No.4076/Waqf-1/A2/2007-3, dated 12-08-2008, again granting permission to respondent No.1 to lease out part of the subject land i.e. an extent of Ac.1-06 cents in Survey No.288/3 to respondent No.4 for which lease was already granted to the petitioner institution and the same is in subsistence. Issuance of the impugned memo granting a fresh lease for mining in the land in question in favour of respondent No.4 during the subsistence of lease in favour of the petitioner institution over the same land is illegal and arbitrary. Hence, this writ petition.

3. Respondent Nos.1 and 3 filed common counter affidavit while respondent No.2 filed its counter affidavit denying the material allegations made against them.

4. Heard the learned counsel on either side and perused the material available on record.

5. Learned counsel for the petitioner would submit that Shaik Hussain Saheb is Mutawalli of the petitioner institution. He was appointed as Mutawalli by order dated 26-07-2006 of respondent No.1 based on his representation dated 05-12-2005. The petitioner institution is a notified Waqf Institution as per the Gazette published in Andhra Pradesh Gazette, Part-II, dated 02-05-1963, at Serial No.1766. On the representation of the petitioner dated 29-09- 2006 to respondent No.1 to accord permission for mining operations in the aforesaid land belonging to Waqf Board, respondent No.1 accorded permission to the Mutawalli of the petitioner institution by proceedings dated 29-09-2006 for mining operations in the subject lands subject to payment of Rs.8,000/- per acre per annum. Pursuant to the same, the petitioner applied for quarry lease to the authorities concerned under the provisions of A.P. Mines and Mineral Concession Rules, 1966 (for short “Rules 1966”) and the authorities concerned have granted lease to the petitioner by proceedings No.3550/M4/2006 dated 25-04-2007 and proceedings No.3549/M4/2006 dated 17-08- 2007 respectively for quarrying in an extent of Ac.5-84 cents of the land belonging to the Waqf Board for a period of ten (10) years. As per the said permission, the petitioner has been conducting mining operations in the said lands. While so, respondent No.2 issued impugned memo dated 12-08-2008 granting permission to respondent No.1 to lease out the part of the land i.e. Ac.1-06 cents in Survey No.288/3, which was already leased out to the petitioner institution for quarrying, in favour of respondent No.4. Learned counsel contends that issuance of the impugned memo without issuing notice or cancelling the lease granted to the petitioner institution for quarrying in the land in question for a period of ten (10) years, which is still subsisting, again granting lease to a third party i.e. respondent No.4 over the part of the subject land is arbitrary, illegal and in violation of the principles of natural justice.

6. Learned Government Pleader, reiterating the averments made in the counter affidavit, would submit that as per Section 56 of the Waqf Act, lease of the immovable properties belonging to the Waqf Board can be granted only for a period of three (3) years and not more than that and in view of the same, the lease said to have been granted in favour of the petitioner institution for a period of ten (10) years is void and not binding, as such, the impugned memo has been issued by respondent No.2 granting lease in favour of respondent No.4. Further, on account of granting mining lease to the petitioner, petitioner institution is getting only Rs.8,000/- per acre per annum, whereas from the lease granted in favour of respondent No.4 the petitioner institution is getting Rs.40,000/- per acre per annum which is five times more than the amount getting from the petitioner institution. Therefore, in the interest of the petitioner’s institution only, the impugned proceedings have been issued. Hence, there is no illegality or irregularity in issuing the impugned memo.

7. Learned Standing counsel appearing for the Waqf Board would submit that the petitioner institution has no right at all over the land held by it as a lessee and the Waqf Board has every right to cancel or modify the lease at any time without assigning any reasons. As the Waqf Board was getting meager amount by way of lease from the petitioner, In the interest of the Waqf Institution, by following the due procedure, considering the application made by respondent No.4, the matter was referred to the Government and the Government in turn had issued the impugned memo. Therefore, there is no illegality or irregularity in issuing the same. He also quoted the provision under Section 56 of the Waqf Act reiterating the submission made by the learned Government Pleader. He further submits that in the impugned proceedings, as per Section 56 of the Waqf Act, the Government leased out the Waqf land admeasuring Ac.1-06 cents only for a period of three years and the said three years period was already expired, and therefore, the impugned memo now becomes inoperative.

8. Learned counsel appearing for respondent No.4 would submit that respondent No.4 has purchased the land in question i.e. Ac.1-06 cents of land from the petitioner institution and he is in possession of the same, as such, he made an application to respondent No.1, who in turn referred it to the Government for consideration and the Government having considered his entitlement, leased out the said land for quarrying purpose for a period of three years under the impugned memo. Assailing the same, petitioner filed this writ petition and obtained interim orders, by virtue of which respondent No.4 was unable to quarry the mining operations. She further submits that Section 56 of the Waqf Act contemplates that waqf lands cannot be leased out for more than three (3) years and in support of the same, she placed reliance on the decision of this Court in Sri Shinde Enterprises, Hyderabad v. Arastu Talimi Trust and [1] another , the relevant paragraphs of which are as under: “14. The Waqf Act,1995 (for short “the 1995 Act”) came into force on 22nd November, 1995. Section 56 of this Act reads as under: “56. Restriction on power to grant lease of Waqf property:- (1) A lease or sub-lease for any period exceeding three years of any immovable property which is Waqf property, shall, notwithstanding anything contained in the deed or instrument of Waqf or in any other law for the time being in force, be void and of no effect. (2) A lease or sub-lease for a period exceeding one year and not exceeding three years of immovable property which shall, notwithstanding anything contained in the deed or instrument of Waqf or in any other law for the time being in force, be void and of no effect unless it is made with the previous sanction of the Board. is Waqf property (3) The Board shall, in granting sanction for lease or sub-lease or renewal thereof under this section review the terms and conditions on which the lease or sub-lease is proposed to be granted or renewed and make its approval subject to the revision of such terms and conditions in such manner as it may direct.” 15. A bare perusal of this Section shows that there is no power to grant lease of Waqf property beyond three years with anybody. Section 56(1) of the 1995 Act applies to all deeds, instruments and even to the law that was in force, at the time of coming into force of the Waqf Act, 1995. Therefore, even if it is accepted as is contended by the learned counsel for the petitioner that there was no such restriction in 1978 when the lease deed was executed, even then, by operation of law, enunciated under Section 56(1) of the 1995 Act, all leases exceeding three years relating to Waqf property became void. Therefore, the lease deed itself on the basis of which, the tenant wanted to extend the period of lease up to 31 years has become void in the eye of the law. While reading sub-clauses to Section 56 of the 1995 Act, it becomes clear that a lease for a period of less than one year does not need any sanction from the Waqf Board, but there should be a sanction of Waqf Board if the lease is created between one year and three years and a lease for a period exceeding three years cannot be granted even with permission of the Waqf Board. Therefore, even if there is a lease for twenty years with the permission of the Waqf Board, it cannot even be treated, as a lease deed even for a year because it is a void agreement and it is settled law that void agreements are unenforceable.

17. Learned counsel for the petitioner submits that the lease was created when the earlier Act i.e., Waqf Act, 1954 (for short “the 1954 Act”) was in operation, therefore, the lease is saved. Now before going to the fallacy of this argument, it will be pertinent to have a look at Section 36-F of the 1954 Act, which lays down that: 36-F. Restrictions on the powers to grant lease of Waqf Property- (1) A lease or sub-lease for any period exceeding three years of any immovable property which is Waqf property shall, notwithstanding anything contained in the deed or instrument of Waqf or in any other law for the time being in force, be void and of no effect. (2) A lease or sub-lease for a period exceeding one year and not exceeding three years of any immovable property which is Waqf property shall, notwithstanding anything contained in the deed or, instrument of Waqf or in any other law for the time being in force, be void and of no effect unless it is made with the previous sanction of the Board. (3) The Board shall, in granting sanction for the making or renewal of lease under this section reviewing the terms and conditions on which the lease or sub-lease is proposed to be granted or renewed and make its approval subject to the revision of such terms and conditions in such manner as it may direct.

9. In reply to the arguments advanced by the learned Government Pleader, learned Standing Counsel for the Waqf Board and the learned counsel for respondent No.4, learned counsel for the petitioner submits that by virtue of the interim order dated 08-09-2008 granted by this Court, the petitioner is conducting mining operations in the entire area of Acs.5-84 cents in Survey Nos.288/1, 288/3 and 293. Though Section 56 of the Waqf Act contemplates that lease of immovable properties can be granted only for three years and not beyond that, as per the conditions of the lease granted by the mining authorities under the proceedings dated 12-04-2007 and 25-04-2007, the lease period is for a period of ten years, and therefore, the petitioner is entitled to do mining operations for the said ten years period.

10. In view of the rival contentions raised on either side, the only question that arises for consideration is: “Whether impugned memo questioned in this writ petition by the petitioner would survive or not, as of now?” QUESTION:

11. The impugned memo No.4076/Waqf-1/A2/2007-3, dated 12-08-2008, which led to filing of this writ petition is extracted hereunder for convenience sake: “With reference to the Govt. Memo. 2nd and 4th cited, the Chief Executive Officer, A.P. State Waqf Board, Hyderabad has reported in the reference 5th cited and requested to accord permission to lease out the land belonging to Ashoor Khana situated at Palukur village, Banaganapalle Mandal of Kurnool Dist., Sy.No.288/3 in an extent of Ac.1-06 cents to Sri Kottala Nagaraju R/o village, Banaganapalle Mandal, for mining purpose. Palukur

2. Government after careful consideration decided to lease out Acres 1.06 cents Waqf land under Section 56 of Waqf Act, 1995 in survey No.288/3 of Palukur village, Banaganapalle Mandal, Kurnool Dist. in favour of Sri Kottala Nagaraju R/o Palukur village, Banaganapalle Mandal for the period of 3 years @ Rs.40,000/- (Rupees Forty thousand only) per acre and enhancement of 10% for each year subject to condition that after exploration of stone material the portion to be filled up with the sand.

3. The Chief Executive Officer, A.P. State Waqf Board, Hyd. is requested to take necessary action in the matter under intimation to Govt.”

12. There is no dispute that earlier pursuant to the permission accorded by respondent No.1 leasing out the subject land for mining operations, the mining authorities granted lease to the petitioner institution for a period of ten (10) years for mining operations in an extent of Acs.5-84 cents of land in Survey Nos.288/1, 288/3 and 293 of Palukur village, Banaganapalle Mandal, Kurnool District by respondent No.1 vide proceedings No.3550/M4/2006 dated 25-04-

2007. During the subsistence of the said lease period in favour of the petitioner institution, again respondent No.2 granted lease in favour of respondent No.4 over the part of the said land i.e. Ac.1-06 cents in Survey No.288/3 for mining purpose for a period of three years i.e. from 12-08-2008 onwards. This is the main issue in this writ petition.

13. However, as referred supra, during the course of arguments, learned counsel appearing for the respondents brought to the notice of this Court that as per Section 56 of the Act, lease of the immovable properties belonging to the Waqf Board can be granted only for a period of three (3) years and not more than that. Even according to the decision of this Court in Shinde’s Case referred supra, on which reliance is placed by the learned counsel for respondent No.4, if a lease of the immovable property belonging to the Waqf Board is granted for more than three years, it cannot be treated as a lease even for an year since it is a void agreement and it is a settled law that void agreements are unenforceable.

14. In view of the above, without going into the merits of the case, it can be safely held that the agreement of lease granted in favour of the petitioner for a period of ten (10) years for mining purpose is void in the eye of law and an unenforceable one. Further, as per paragraph No.3 of the impugned memo, the period of lease granted in favour of respondent No.4 was only for a period of three years commencing from 12-08-2008 and came to an end by August 2011 itself. Thus, the lease granted in favour of respondent No.4 by the impugned memo was over. Hence, the impugned memo ceased to be in existence. In the circumstances, no purpose would serve to consider the validity of the impugned memo when the same is ceased to be in existence. The question is accordingly answered.

15. However, if any person applies for fresh lease over the subject land for mining purpose, the Waqf Board is directed to take an appropriate decision in the matter within a period of three months from the date of such application.

16. With the above direction, the Writ Petition is disposed of. Consequently, the Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed. No costs. _________________ G. CHANDRAIAH, J. December 27, 2012. MGR [1] 2005 (2) ALT 76