Writ Petition No. 3735 of 2014 · Bombaybench High Court
Case Details
2025:BHC-AUG:24721 924-WP-3735-2014.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 3735 OF 20141.Sayed Haji s/o Sayed MustaffaAge 67, Occu. Agri., R/o Udgir, Tq. Udgir, Dist. Latur.2.Sayed Hashams/o Sayed KhajaAge Major, Occu. Agri., R/o Udgir, Tq. Udgir, Dist. Latur.3.Sayed Akbar S/o Sayed NoorDied Through LR’s3A-Syed Mujahed s/o Syed Akbar JahagirdarAge 48 yrs, Occu-Agri.3B-Syed Nooruddin s/o Syed Akbar JahagirdarAge 46 yrs, Occu-Agri.3C-Syed Asadulla Saber s/o Syed Akbar JahagirdarAge 44 yrs, Occu-Agri and Service.3D-Syed Omer s/o Syed Akbar Jahagirdar Age 35 yrs, Occu-AgriR/o Syed Chand Mohalla, Udgir,Dist. Latur...PETITIONERSVERSUS1.The State Of Maharashtra2.The Deputy Collector (Atiyat) Udgir,Tq. Udgir, Dist. Latur.3.The Tahsildar, Udgir,Tq. Udgir, Dist. Latur.4.Sayed Hidayatali s/o Sayed Lal MutavaliAge Major, Occu. Agri., UmeshPAGE 1 OF 33
Legal Reasoning
924-WP-3735-2014.odtR/o Vikas nagar, Udgir, Tq. Udgir, Dist. Latur.5.Sayed Abdul Razzak Sayed s/o Sayed MutavaliAge Major, Occu. Agri., R/o Syed Chand Darga, Udgir, Tq. Udgir, Dist. Latur.6.Hashmi Sayed Haji Sayed Lal(Died through LR’s)6A-Syed Irshad S/o Hashmi Sayed HajiAge-Major, Occu- Agri.6B-Hashmi Akhil S/o Hashmi Sayed HajiAge-Major, Occu-Agri6C-Hashmi Sayyed Jamil S/o Hashmi Sayed HajiAge- Major, Occu-Agri6D-Sayed Shakil S/o Hashmi Sayed HajiAge- Major, Occu- Agri6E-Hashmi Syed Khaleel S/o Hashmi Sayed HajiAge-Major, Occu- Agri6F-Syed Mudassir S/o Hashmi Sayed HajiAge- Major, Occu-Agri6 A To 6 F All R/o Sayed Chand Mohalla,Udgir, Ta. Udgir, Dist. Latur7.Hashmi Muktar s/o Sayed AlimoddinR/o. Syed Chand Darga,Tq. Udgir, Dist. Latur.8.Syed Abdul Hag s/o Syed Nooruddin.Age 69 years, occ. pensioner, R/o Syed Chand Daryah, Nileben Ves, Udgir, Dist. Latur...RESPONDENTS...Mr. V. C. Solshe, Advocate for the PetitionerMr. S. N. Kendre, AGP for Respondent Nos. 1 to 3Mr. S. P. Shah, Advocate for Respondent No. 4UmeshPAGE 2 OF 33 924-WP-3735-2014.odtMr. A. S. Deshmukh, Advocate for Respondent No. 5Mr. A. P. Bhandari, Advocate for Respondent No. 6Mr. S. Q. Shaikh, Advocate for Respondent No. 7Ms. A. N. Ansari, Advocate for Respondent No. 8WITHWRIT PETITION NO. 6172 OF 2014 WITHCA/11432/2023 IN WP/6172/2014 WITHCA/6311/2024 IN WP/6172/20141.Syed Zaker S/o Syed Abul Kasim(Died through LR’s)1A.Badrunis W/o Syed Zaker,Age: 47 years, Occ. AgricultureR/o Proper Dargah Hazart SyedChand, Udgir, Dist. Latur2.Syed Shaker s/o Syed Abul Kasimage: 39 yrs occu: Agril, R/o as above3.Syed Naser s/o Syed Abul Kasimage: 34 yrs occu: Agril, R/o as above4.Syed Zafar s/o Syed Abul Kasimage: 29 yrs occu: Agril, R/o as above5.Syed Athar s/o Syed Abul Kasimage: 27 yrs occu: Agril, R/o as above6.Syed Azhar s/o Syed Abul Kasimage: 37 yrs occu: Agril, R/o as above...PETITIONERSVERSUS1.The State Of Maharashtra2.Syed Hidayatali s/o Sayyed LalAge: 56 yrs occu: Nil, R/o Hashmi Manzil, Vikasnagar, Udgir Tq Udgir Dist. Nanded.3.Syed Abdul Rajjak s/o Syed Multani,Age: 43 yrs Occu: Nil UmeshPAGE 3 OF 33 924-WP-3735-2014.odtR/o Near Sayyed Chand Dargah, Udgir Tq Udgir District Nanded.4.Hashmi Sayyed Haji Sayyed Lal(Died through LR’s)4-A.Sayed Ireshad s/o Hashmi Sayed Haji,Age:-Major, Occ. Agri.,4-B.Hashmi Akhil s/o Hashmi Sayed Haji,Age:- Major, Occ. Agri.,4-C.Hashmi Sayyad Jamil s/o Hashmi Sayed Haji,Age:- Major, Occ. Agri.,4-D.Sayed Shakil s/o Hashmi Sayed Haji,Age:- Major, Occ. Agri.,4-E.Hashmi Syed Khakeek s/o Hashmi Sayed Haji,Age:- Major, Occ . Agri.,4-F.Sayed Mudassir s/o Hashmi Sayed Haji,Age:- Major, Occ. Agri.,4-A to 4-F are R/o Udgir,Tq. Udgir, Dist. Latur5.Sayyed Haji s/o Sayyed MustafaAge:35 yrs Occu: Nil R/o Sadat Nagar, Degloor Road, Udgir Tq Udgir District Nanded6.Sayyed Hasham s/o Sayyed KhajaAge: 37 yrs Occu: Nil R/o as above.7.Syed Akbar s/o Syed Nooruddin(Died through LR’s)7-A. Sayed Akbar s/o Syed Akbar Jahagirdar,Age:-Major, Occ. Agri.,7-B. Syed Nooruddin s/o Syed Akbar Jahagirdar,Age:- Major, Occ. Agri.,7-C.Sayed Asadulla@Saber s/o Syed Akbar Jahagirdar,UmeshPAGE 4 OF 33 924-WP-3735-2014.odtAge:- Major, Occ. Agri.,7-D.Syed Omar s/o Syed Akbar Jahagirdar,Age:- Major, Occ. Agri.,7-A to 7-D are R/o Syed Chand Mohalla UdgirTq. Udgir, Dist. Latur8.Hashmi Mukhtar s/o Sayyed AlimuddinAge: 40 yrs, Occu: Nil, r/o as above.9.Tahsildar,Tahsil Office, Udgir, Tq Udgir, District Nanded....RESPONDENTS…Mr. G. R. Syed, Advocate for the PetitionersMr. S. N. Kendre, AGP for Respondents/StateMr. A. S. Deshmukh, Advocate for Respondent No. 3 WITHWRIT PETITION NO. 4957 OF 2014Hashmi Syed Haji Syed Lal Since Deceased Through LRs,1-A) Ather Syed Haji Hashmi Died Through LRs,1-A-i) Syeda Asra Ather HashmiAge: 48 Years, Occu. Housewife1-A-ii) Hashmi Syed Abrar AtherAge: 26 Years, Occu. LabourBoth (1-A-i) & (1-A-ii) R/o.: Syed Chand Mohalla, Udgir, Tq. Udgir, Dist. Latur1-A-iii) Arjuman Shahin Mubin PirjadeAge: 28 Years, Occu. HousewifeR/o.: Syed Akulga,Tq. Shirur Anantpal, Dist. LaturUmeshPAGE 5 OF 33 924-WP-3735-2014.odt1-A-iv) Rukhsar Sirajoddin ShaikhAge: 24 Years, Occu. HousewifeR/o.: Bhandarkumtha, Tq. Aurad, Dist. Bidar1-A-v) Afsha W/o Ajmad ShaikhAge: 23 Years, Occu. HousewifeR/o. Raj Shree Shahu Colony, Nideban, Tq. Udgir, Dist. Latur1-B) Syed Irshad S/o Haji HashmiAge: 52, Occu. Agriculture,1-C) Hashmi Akhil HajiAge: 50, Occu. Agriculture1-D) Hashmi Syed Jamil Syed HajiAge: 48, Occu. Agriculture,1-E) Syed Shakil S/o Haji HashmiAge: 45, Occu. Agriculture,1-F) Hashmi Syed Khaleel S/o Syed HajiAge: 38, Occu. Agriculture,1-G) Syed Mudassir S/o Haji HashmiAge: 34, Occu. Agriculture,All (1-B) to (1-G) R/o.: Syed Chand Mohalla,Udgir, Tq. Udgir, Dist. Latur1-H) Chand Sultana Yahiya Khan PathanAge: 40 Years, Occu. HousewifeR/o.: Deoni, Tq. Deoni, Dist. Latur1-1) Yasmin Begum @ Rais Fatema Mohammad Shakir PatelAge: 36 Years, Occu. HousewifeR/o.: Ravangaon,Tq. Mukhed, Dist. Nanded1-J) Nagma Parvin Syed ShuaibAge: 32 Years, Occu. HousewifeR/o.: Raj Mohammad, Darga RoadUmeshPAGE 6 OF 33 924-WP-3735-2014.odtUdgir, Tq. Udgir, Dist. Udgir...PETITIONERSVERSUS1.The State Of Maharashtra2.Syed-Hidayatali s/o Sayyed LalAge: 56 yrs occu: Nil, R/o Hashmi Manzil, Vikasnagar, Udgir Tq Udgir Dist. Nanded.3.Syed Abdul Rajjak s/o Syed Multani,Age: 45 yrs Occu: Agril R/o at Sayyed Chand Dargah, Udgir Tq Udgir District Nanded.4.Sayyed Haji s/o Sayyed MustafaAge: 65 yrs Occu: Agril R/o Sadat Nagar, Degloor Road, Udgir Tq Udgir District Nanded5.Sayyed Hasham s/o Sayyed KhajaAge: 62 yrs Occu: Agril R/o Sadat Nagar, Degloor Road, Udgir Tq Udgir District Nanded6.Syed Akbar s/o Syed Nooruddin(Deceased through LR’s)6-A)Syed Mujahed S/o Syed Akbar Jahagirdar Age: 49 Years, Occu.: Agriculture,6-B)Syed Nooruddin S/o Syed Akbar Jahagirdar Age: 47 Years, Occu.: Agriculture,6-C)Syed Asadulla @ Saber S/o Syed Akbar JahagirdarAge: 45 Years, Occu.: Agriculture,6-D)Syed Omar S/o Syed Akbar Jahagirdar Age: 36 Years, Occu.: Agriculture, 6-A to 6-B All R/o.: Syed Chand Mohalla, Udgir, Tq. Udgir, Dist. Latur.UmeshPAGE 7 OF 33 924-WP-3735-2014.odt7.Hashmi Mukhtar s/o Sayyed AlimuddinAge: 55 yrs occu: Business R/o Sadat Nagar, Degloor Road, Udgir Tq Udgir District Nanded...RESPONDENTS…Mr. A. P. Bhandari, Advocate for the PetitionerMr. S. N. Kendre, AGP for Respondents/StateMr. S. P. Shah, Advocate for Respondent No. 2Mr. A. S. Deshmukh, Advocate for Respondent No. 3Mr. V. C. Solshe, Advocate for Respondent Nos. 4 to 6Mr. R. B. Deshmukh, Advocate for Respondent No. 7 WITHWRIT PETITION NO. 4047 OF 2014Syed Abdul Razzak Syed MultaniAge 69 years, Occ. Agriculture,R/o Dargah Hazrat Syed Chand, Near NirbanVes, Tq. Udgir, Dist. Latur...PETITIONERVERSUS1.The State Of Maharashtra2.Syed Hidayat Ali s/o Syed LalAge about 50 years, Occ. Alleged GPAof deceased Syed A. Kasim s/o SyedMeera Hussainee R/o. Udgir,Dist. Latur3.Hashmi Syed s/o Haji Syed Lal(Died through LR’s)3a) Syed Irshad s/o Hashmi Syed Haji Age major Occ. Agriculture3b) Hashmi Akhil s/o Hashmi Syed Haji Age major Occ. Agriculture3c) Hashmi Syed Jamil s/o Hashmi Syed Haji Age major Occ. Agriculture3d) Syed Shakil s/o Hashmi Syed Haji UmeshPAGE 8 OF 33 924-WP-3735-2014.odtAge major Occ. Agriculture3e) Hashmi Syed Khalil s/o Hashmi Syed Haji Age major Occ. Agriculture3f) Syed Mudassir s/o Hashmi Syed Haji Age major Occ. Agriculture3a to 3f all R/o Syed Chand Mohalla, Udgir, Tq. Udgir Dist. Latur.4.Syed Haji S/o Syed Mustafa5.Syed Ham s/o Syed Khaja6.Syed Akbar s/o Syed Nooruddin(Died through LR’s)A.Syed Mujaheb s/o Syed Akbar,Age 48 yrs, Occ. ServiceB.Syed Nuruddin S/o. Syed Akbar,Age 40 years, Occ. ServiceC.Syed Asadulla @ Saber s/o Syed AkbarAge 40 yrs, Occ. Agri,D.Syed Omar s/o Syed Akbar,Age 36 yrs, Occ. Agri.All R/o Syed Chand Dargah, Udgir, Tq. Udgir, Dist. Latur7.Hashmi Muktar s/o Syed AlimoddinAge Major, R/o. Udgir, Dist. LaturAt present R/o. Nilanga, Dist. Latur...RESPONDENTS…Mr. D. R. Bhadekar, Advocate for the PetitionerMr. S. N. Kendre, AGP for RespondentsMr. S. P. Shah, Advocate for Respondent No. 2Mr. V. C. Solshe, Advocate for Respondent Nos. 4 to 6Mr. S. Q. Shaikh, Advocate for Respondent No. 7***UmeshPAGE 9 OF 33 924-WP-3735-2014.odtCORAM:R. M. JOSHI, JRESERVED ON:AUGUST 22, 2025PRONOUNCED ON:SEPTEMBER 15, 2025JUDGMENT : 1.Rule. Rule made returnable forthwith. Byconsent of both sides, heard finally.2.These Petitions take exception to the orderpassed by the Additional Collector (Atiyat), Laturdated 07.03.2014 in File No. 2013/Religious/CR-96passed under the provisions of the Hyderabad AtiyatInquiries Act, 1952 (for short ‘the Act’), whereby theAppeal filed by contesting Respondent, Hidayatali, cameto be allowed and he is declared to be successor ofAtiyat grant and held to be entitled to receivepossession of subject properties.3.The facts as well as points of law involved inthese Petitions being same, by consent of both sides,these Petitions are heard finally together and decidedby this common judgment.4.For the sake of convenience, facts asmentioned in Writ Petition No. 3735/2014 are taken intoconsideration. It is clarified that except for theUmeshPAGE 10 OF 33 924-WP-3735-2014.odtrelationship between the parties and their claims inrespect of succession, facts in these Petitions arecommon.5.Petitioners challenge the order impugnedpassed in favour of Syed Hidayatali (contestingRespondent) whereby he was held to be Mutawalli inrespect of Hazarat Sayed Chand Dargah and Masjid, Udgir(for short “Dargah and Mosque”). It was furtherdirected therein that the land resumed by theGovernment bearing Survey Nos. 167 and 230 be releasedin favour of this Respondent. Similarly, the amountreceived from the Ek Sal Lavani was directed to be paidto him.6.It is the case of the Petitioners thatMuntakhab was issued by the Competent Authority i.e.,Collector, Osmanabad (Bidar Sharif) holding that thesuccession right in respect of Atiyat grant is infavour of Syed Burhan. On his death, Syed Asadullah andSyed Noorudin were found to be the only his heirs.Under the circumstances, the succession was given infavour of elder son Syed Asadullah and Syed Nurrodinwas held to be his Deputy.UmeshPAGE 11 OF 33 924-WP-3735-2014.odt7.Petitioners claim that by order dated11.07.1983 the lands in question were resumed by theGovernment for the alleged non-compliance of theconditions of Atiyat grant by its holders. Accordingly,by notification dated 11.07.1983 Ek Sal Lavani systemwas adopted. This order was came to be challengedbefore Deputy Collector (Atiyat), Udgir. Initially,said order was stayed, however, later on it came to bevacated on 08.05.1990. The said order was takenexception in an Appeal and further Revision and thesaid litigation finally landed in this Court in WritPetition No. 1676/1992. Syed Abdul Kasim, son of SyedMeera Hussaini, fought the said litigation. In the saidWrit Petition, Syed Hidayatali appeared on behalf ofthe Petitioner therein claiming to be constitutedattorney of the Petitioner. According to thePetitioners in the said Writ Petition, heirs of theSyed Abdul Kasim moved Civil Application No. 842/1996claiming themselves to be the legal representative ofdeceased. Similar Applications were made by othersclaiming to be the heirs of the Atiyat grant holder.This Court, by order dated 20.07.1996, allowed thePetition and set aside the impugned orders and remandedUmeshPAGE 12 OF 33
Decision
924-WP-3735-2014.odtthe matter back to the Deputy Collector (Atiyat), Udgirfor its disposal in accordance with law. It was furtherobserved that till the inquiry is held, the possessionto be continued with the Government with a liberty toauction the land on Ek Sal Lavani basis. It is claimedby the Petitioners that there are other nine Petitionspending before the Deputy Collector (Atiyat), Udgir inrespect of the subject properties filed by thePetitioners and the others including contestingRespondent Syed Hidayatali.8.Syed Hidayatali moved Writ Petition No.8026/2010 seeking direction to the Deputy Collector(Atiyat), Udgir to decide his application dated21.09.1996. This Petition came to be disposed of withliberty to file fresh Application. Accordingly, SyedHidayatali filed fresh application on 03.03.2011 beforeCompetent Authority claiming the succession to the postof Mutawalli and also possession of Survey Nos. 167 and230 situated at Udgir with further prayer to pay entireauction amount in respect of these lands to him. Sincethe said proceeding was pending decision, partiesrequired to approach this Court by filing Writ PetitionUmeshPAGE 13 OF 33 924-WP-3735-2014.odtwherein a direction was issued to dispose of theApplication within three months of the appearance ofthe parties. Deputy Collector (Atiyat), Udgir by orderdated 12.07.2013 dismissed both Applications in fileNo. 2012/Inam/CR/2 and directed Syed Hidayatali toapproach the concerned Authority for appointment ofMutawalli before Waqf board. Being aggrieved by thesaid order, Syed Hidayatali preferred Appeal beforeAdditional Collector, Latur in Appeal File No.2013/Religious/CR-96. In the said Appeal, SyedHidayatali as well as Petitioners and other Respondentswere heard. Appellate Authority accepted the contentionof Syed Hidayatali of he being appointed as Mutawalliby Syed Abdul Kasim s/o Syed Meera Husaini on the basisof document titled as power of attorney. It was furtherdirected that the subject properties be handed overinto his possession along with the amounts received inan auction for Ek Sal Lavani.9.Petitioners being aggrieved by the said order,has preferred these Petitions on following amongstother grounds:(i)That the Additional Collector (Atiyat)erred in holding that Syed Hidayatali hasUmeshPAGE 14 OF 33 924-WP-3735-2014.odtbeen appointed as Mutawalli by Syed AbdulKasim under a power of attorney withoutdeciding the issue as to whether thedeceased himself was Mutawalli.(ii)On the basis of the power of attorney,Mutawalliship cannot be transferred andthat on death of the executor of the powerof attorney, the said document ceased tohave effect.(iii)Additional Collector erred in drawingconclusions on the basis of the orderspassed by this Court of directing Rs.20,200/- to be paid to the deceased SyedAbdul Kasim as it was clarified thereinthat the said order was an interim orderand it was passed without affecting therights of the parties.(iv)The Additional Collector erred in directingTahsildar to handover the possession of thesubject properties to Syed Hidayatali whenthere were in all nine Petitions includingPetition filed by Syed Hidayatali werepending before Deputy Collector (Atiyat),Udgir for adjudication into their rights.(v)Additional Collector failed to considerprovisions of Section 12(2) of the Actwhich constitutes that if any disputearises involving questions of succession,legitimacy, divorce or other questions ofpersonal law, the Atiyat Court shall directthe parties to get the dispute decided inthe competent Civil Court and on productionof the final decision of the Civil Court,the Atiyat Court shall give effect of suchdecision.UmeshPAGE 15 OF 33 924-WP-3735-2014.odt(vi)Additional Collector committed error in notdeciding all Applications together.10.Learned Counsels for the Petitioners madenumber of submissions and on occasion contrary to theinterest of each other. Such submissions were obviousin view of the fact that all Petitioners claim theirexclusive right of succession of Atiyat grant. The sumand substance of their contention, however, is thatcontesting Respondent Syed Hidayatali could not claimthe succession into the Atiyat grant in view of thefact that he is not the successor of the person inwhose favour Muntakhab has been issued. It is theircontention that on the basis of power of attorney, theright of succession cannot be conferred upon him bySyed Abdul Kasim. According to them, the power ofattorney even if accepted to have been executed byAbdul Kasim, after his death the said document hasceased to have effect. In any case, it is theircontention that the Atiyat inquiries in the grant isinherited by succession and cannot be transferred. Inthis regard, reference is made to Muntakhab issued infavour of Mir Abbasali P. Sayad Ismael, Sayad Hasan FotVaris Khurshidabegam, Sayad Murtuja, Mohd. Ismael andUmeshPAGE 16 OF 33 924-WP-3735-2014.odtSayad Mustafa & Sayad Abdul Khadar P. Sayad Lal. Byreferring to the provisions of Section 13 of the Act,it is contended that the orders passed relating to theAtiyat inquiries in the grant including Jagirs on orafter 18.09.1948 and before commencement of this Act of1952, shall be deemed to be final orders validly passedby the Competent Authority and the same shall not bequestioned in any Court of law. It is their contentionthat the previous orders by Atiyat Court clearlyindicate that the Atiyat grant was inheritable and assuch, it was not open for the Court to hold SyedHidayatali as successor of the Syed Abdul Kasim on thebasis of power of attorney. They also made reference tothe order passed by this Court dated 20.07.1996, whichaccording to them mandates the parties to obtainsuccession first and then to seek the possession of theland resumed by the Government.11.Per contra, learned Counsel for contestingRespondent, Syed Hidayatali, submitted that there is nodispute about the execution of the power of attorney bySyed Abdul Kasim, who was a successor of grant holder.It is his submission that the title of the documentUmeshPAGE 17 OF 33 924-WP-3735-2014.odtbecomes immaterial and intention of Syed Abdul Kasim oftransferring of the Mutawalliship in favour of SyedHidayatali can be ascertained from the recitals of thedocument. It is his submission that the said documentindicates that it was Syed Hidayatali who wasperforming all rituals of Dargah and Mosque and forthis reason, Mutawalliship was transferred in his name.In support of his submissions, he placed reliance onjudgment in case of Haji Abdul Razaq vs. Sheikh AliBakhsh and Another, (1948) 50 BOM L.R. 661 to contendthat there was no embargo for the Syed Abdul Kasim totransfer the Mutawalliship in favour of SyedHidayatali. He also placed reliance on the judgment ofCoordinate Bench of this Court in case of PouladDeochand Patil vs. Samasta Aher Nhavi Panch Trust, 1992Mh.L.J. 412 in order to argue that in certainsituations ex post facto hearing could be a substitutefor grant of prior hearing in a given case. He arguedthat even if this concluded that it would beappropriate to direct rehearing of the Application, theorder of possession of the subject lands by thecontesting Respondent Syed Hidayatali needs to becontinued in his favour. Without prejudice to hisUmeshPAGE 18 OF 33 924-WP-3735-2014.odtcontentions, it is his submission that the appearancein the inquiry before the Authority needs to berestricted to the extent of person who have any rightof succession through the concerned persons in whosefavour Muntakhab has been issued and not allobjectors/claimants.12.An issue was also raised on behalf of thePetitioners that in spite of the order passed by thisCourt of granting status quo, the contesting RespondentSyed Hidayatali has taken the possession of the subjectlands during the operation of order of stay. Counselfor Respondent opposed the said contention by claimingthat though order was passed initially, the same wasnot continued and hence, the possession taken is notcontrary to the orders. It is further claimed that thesubject lands are given into the possession of thepresent contesting Respondent, the said possession becontinued with him.13.In order to appreciate the rival submissions,it would be relevant to take note of the provisions ofthe Act. As per the statement and object, the Act isaimed at consolidation of law relating to Atiyat grant,UmeshPAGE 19 OF 33 924-WP-3735-2014.odtin respect of Atiyat inquiries, inquiries as the claimsto succession to, or any right, title or interest inAtiyat grants and matters ancillary thereto. Section 13of the Act gives finality of the decision of AtiyatCourt. Atiyat Courts, means a Court or Authoritycompetent to make Atiyat inquires and inquiries as tothe claim of succession or any other right, title orinterest in Atiyat grants and matters ancillarythereto. Section 3 provides that all Atiyat grantssubject to the provisions of Hyderabad Abolition ofJagirs Regulation, 1358 Fasli, the Hyderabad Abolitionof Cash Grants Act, 1952 and the Hyderabad Abolition ofInams Act, 1954 continue to be held by the holdersthereof subject to conditions laid down in Muntakhabsor Vasiqas. Section 3-A makes provision with regard toinquiries as to Atiyat grants. In case of Atiyat grantspecified in sub-section (1) of Section 2 in clause(b), the inquiry with regard to right, title orinterest therein shall be held in Atiyat Court inaccordance with the provisions of this Act. It furtherprovides that in the course of such inquiries, AtiyatCourts are competent to inquire into the claims tosuccession arising in respect of such grants. ProvisoUmeshPAGE 20 OF 33 924-WP-3735-2014.odtto this sub-section states that the claims to thesuccession arising after the completion of Atiyatinquiry or Atiyat grant shall not be entertained in anyCourt and all such claims shall be filed and decided bythe competent Civil Court. The said proviso clearlyapplies only to the extent of the matters covered bySection 2(1)(b)(i) of the Act. Sub-section (2) ofSection 3-A makes specific provision with regard toAtiyat grants specified in sub-clauses (ii) to (vi) ofclause (b) of sub-section (1) of section 2. Allinquiries as to the claim of succession or any right,title or interest and the matter ancillary theretoshall be held in Atiyat Courts in accordance with theprovisions of this Act. It is thus clear that inrespect of inquiry with regard to the succession, thepowers are vested in the Atiyat Court to conduct theinquiry and to determine the claim as to succession orany right, title or interest therein includingancillary matters.14.Section 12 provides for decision of CivilCourt to prevail on question of succession, legitimacy,etc. As far as the question of succession, legitimacy,UmeshPAGE 21 OF 33 924-WP-3735-2014.odtdivorce or other questions of personal law areconcerned, the final decision of Civil Court shall begiven effect by Atiyat Courts under this Act,irrespective of whether decision of Atiyat Court wasgiven before or after the decision of Civil Court. Sub-section (2) provides that if in the course of anyinquiry as to the claims to succession, any disputearising involving question of succession, divorce orlegitimacy or personal law, the Atiyat Court shalldirect the parties to get the dispute decided in thecompetent Civil Court and on production of finaldecision of Civil Court, Atiyat Court shall give effectto such decision. These provisions are clarificatory innature and do not take away the powers of Atiyat Courtto conduct an inquiry into the claim of succession andto decide dispute involving the question of successionor right, title or interest therein. What is requiredto be referred to the Civil Court is inter se disputebetween the persons claiming to be successors of theperson holding the Atiyat grants and to that extent thedecision of the Civil Court would prevail upon thequestion of succession, legitimacy, etc. Thus, only forthis limited purpose a reference could be made to theUmeshPAGE 22 OF 33 924-WP-3735-2014.odtCivil Court and that each objection or claim to thesuccession cannot be referred to the Civil Court, sincethe said subject solely lies to the jurisdiction ofthese Courts. Merely because the parties have moved theCivil Court for the decision of succession, that per sedoes not affect the powers vested in the Atiyat Courtto decide succession or right, interest etc. No doubt,in case of a decision of Civil Court on legitimacy,succession or divorce or other question of personallaw, the same shall be given effect by Atiyat Court.15.The provisions of the Act clearly indicatethat formant has been provided for the decision of thesubject matters covered by the Act including thejurisdiction and procedure of the Atiyat Courts andappeals against orders.16.The matters as to the fulfillment of theconditions of the Muntakhab and resumption of the landby the Government for non compliance thereof, alsowould be subjected to the decision of the AtiyatCourts.17.It would be pertinent to note that perusal ofUmeshPAGE 23 OF 33 924-WP-3735-2014.odtentire Act, it does not deal with the appointment ofMutawalli. The terms Mutawalli does not find place inentire text of the enactment. It only deals withsuccession, right, title and interest of Atiyat grantsand ancillary matters. The purport of these provisionsis to determine right, title and interest of persons inthe Atiyat grants. The terms ‘mutawalli’ finds place inthe Wakf Act, 1995, wherein section 3(i) definesmutawalli as person who is appointed to perform dutiesof mutawalli. Needless to emphasize that mutawalli doesnot get any right, title or interest even in theproperties of wakf. The very nature and designation ofa mutawalli is to perform duties without interest beingcreated in the properties. On the contrary, thesuccessor of interest of Atiyat grant holder inappropriate cases has right, title and interest in theproperties. Thus, a serious question would arise as towhether there can be appointment of a mutawalli/managerunder the provisions of the Act, and the answer theretowould be in negative.18.Before analyzing the facts in the context ofthe provisions of law, it would be fruitful to takeUmeshPAGE 24 OF 33 924-WP-3735-2014.odtnote of certain orders passed by this Court as well asCourts in the Act. Along with rejoinder, Petitioner inWrit Petition No. 3735/2014 has placed on recordgranting succession in respect of the subject property.The said order reads thus:ftYg;kP;k eatqjhpk ‘ksjk lafpdk dza- 28@58@36 Q-vfHkys[k dz- 16@36 Q-gh fojklr l¸;n cqÚgkuph vkgs] T;kapk okjlk e/;s l[[ksnksu eqys l¸;n vlnqYyk o l¸;n uqjksíhu vkgsr- ;kr l¸;n‘ke’kksíhu ;kauh vk{ksi vtZ dsyk- rgflye/kwu R;kP;kvuqmifLFkr rDrk r;kj d:u ikBfo.;kps vkns’khr >kys-T;kph uksan laphdsP;k fVIi.khr vkgs- l/;k gs ikgko;kps vkgsdh dks.kkph fojklr vkgs o toGps ukrsokbZd dks.k vkgsrlaphdsps voyksdu dsY;kuarj Li”V gksr vkgs dh] e;rl¸;n cqÚgkuyk Qdr nksu eqys vkgsr- l¸;n vlnqYyk ol¸;n uqjksíhu nksu eqys thoar vkgsr-Eg.kwu l¸;n cqÚgkuph fojklr eksBk eqyxk l¸;nvlnqYykkP;k ukos o f’kdeh l¸;n uqjksíhu eatwj-‘ke’kksíhupk vk{kai vtZ QsVkG.;kr ;sr vkgs- R;kauk tjdkgh vk{ksi vlY;kl dk;Zokgh d: ‘kdrkr-By this order, the succession is granted to SayedAsadullah i.e. elder son of Sayad Burhan, Atiyat grantholder and ‘Shikami’ is granted to younger son SayadNoorudin in File No. 3/11/1310 Fasli. There is one moreorder of 1352 Fasli, granting succession in favour ofSayad Multani, son of Sayad Moinuddin to the extent ofhis share in the properties. There is nothing on recordUmeshPAGE 25 OF 33 924-WP-3735-2014.odtto indicate these orders being challenged at any pointof time. Apparently, these orders have attainedfinality.19.The State Government through Tahsildar, Udgir,by notice dated 11.07.1983 invited applications fromthe villagers for allotting subject lands for “Ek SalaLavni”, for non performance of duties assigned tograndfather of Sayad Abdul Quasim s/o Syed MiraHussainee. This notice came to be challenged before theAtiyat Court and finally dispute reached to this Courtin Writ Petition No. 1676/1992. This Court by orderdated 20.07.1996, decided the Petitions and relevantportion of the order reads thus:“8.On going through the variousorders which are passed in this matter, Ithink this is a fit case to remand it toDeputy Collector (Atiyat) for determinationof question involved in the case as pleadedby the parties. Liberty can be granted tothe respective parties to putforth theirclaim either as a successor mutavalli orlegal heirs or representative of deceasedMutavalli or inamdar to challenge the orderof resumption. 9.In the result, the writ petitionis allowed. The impugned orders are quashedand set aside. The matter is remanded toDeputy Collector (Atiyat), Udgir forUmeshPAGE 26 OF 33 924-WP-3735-2014.odtdisposal in accordance with law, keeping inview the aforesaid observations. Till theenquiry is held, the possession shall becontinued with the Government and theGovernment is at liberty to auction theland on Eksala lavani basis. Liberty to theparties to intervene in the enquiry, ifthey are not made parties to theapplication preferred by the originalpetitioner.”Thus, by said order it is directed that tillenquiry is held, possession of subject lands weredirected to be continued with Government with furtherliberty to auction the lands on Eksala Lavani.20.In the meantime, various proceedings andapplications were taken out for receiving the amountderived from auction of ‘Ek sala Lavani’. Though orderswere passed permitting the withdrawal of amounts tomeet expenses and orders are also passed in respect ofthe encroachments caused on subject properties but noneof the order on merits came to be passed determiningrights of parties. 21.Hidayatali filed application being no.2012/Inam/CR-2 before Deputy Collector (Atiyat) forappointment as successor and Mutawalli. ThisUmeshPAGE 27 OF 33 924-WP-3735-2014.odtapplication came to be rejected by order dated12.07.2013 by holding that appointment of Mutawallicannot be done under the provisions of the Act. Anappeal came to be filed against this order being AppealNo. 2013/Religious/CR-96, before Additional Collector(Atiyat), Latur. This Appeal came to be allowed byimpugned order dated 07.03.2014.22.In the context of above orders/facts of thepresent case, the Petitioners as well as contestingRespondent Syed Hidayatali claim to be the successor ofAtiyat grant holder. No doubt, there cannot be anystraight jacket formula to deicide as to whether theAtiyat grant would be inheritable or not and the samewould depend upon the nature of grant and theconditions mentioned therein. At this stage, there isnothing on record to indicate the nature of the Atiyatgrant, in the present case, however, the orders passedby the Atiyat Court of inquiries, which forms part ofthe record, prima facie indicate that the said Atiyatgrant was heritable. The orders of succession passed inrespect of the subject properties indicate that on thedeath of the Atiyat grant holder or successor, hisUmeshPAGE 28 OF 33 924-WP-3735-2014.odtheirs are held to be successors of Atiyat grant. Thus,prima facie there is material on record to indicatethat the succession to the Atiyat grant is hereditaryin nature and could not be transferred by any othermode. In such circumstances, the order impugnedindicate that on the basis of the appointment done bySyed Abdul Kasim, who is legal heir of Syed Lal, SyedHidayatali is claiming to be the successor to theAtiyat grant. In prima facie view of this Court, suchmode of succession of the Atiyat grant in question isapparently alien to the nature of the Atiyat grant andthis aspect requires detailed consideration by AtiyatCourt. The judgment in case of Poulad Deochand Patil(supra) has no application to the present case as thesaid judgment does not deal with issues covered by theAct. In the said case a wakf was created by will and inthe instant case there is Atiyat grant.23.Perusal of the record, more particularly,impugned order indicates that Authority has failed totake into consideration the orders passed by the AtiyatCourts granting the succession of the Atiyat grant byinheritance. The Atiyat Court, therefore, committedUmeshPAGE 29 OF 33 924-WP-3735-2014.odtserious error in law as well as in fact by declaringSyed Hidayatali as the successor of the Atiyat grantholder.24.These Petitions are pending since 2014 andthis Court passed order dated 02.05.2014 in WritPetition No. 4047/2014, issuing notice to Respondents,returnable on 27.06.2014 and ‘till then’ interim reliefin terms of prayer clause ‘c’ is granted. Prayer clause‘C’ reads thus:“Pending final disposasl of this WritPetition Impugned Judgment and order dated7-3-2014 passed by the upper Dist-CollectorLatur in Appeal No. 2013/Religious-Inam/CR/96 be stayed.”On 27.06.2014, interim relief granted wasextended ‘till then’ and Petition was stood over to18.07.2014. This order was continued on 18.07.2014. Asper record, the Petition appeared before the Court onlyon 24.02.2022. Petition was adjourned to 17.03.2022 andthereafter 21.04.2022. This Court passed order tocontinue interim relief, if any, till then i.e.,07.07.2022. Thereafter, on 06.06.2023 interim reliefwas continued till next date. On 25.07.2023, order waspassed that interim relief, if any, to continue tillUmeshPAGE 30 OF 33 924-WP-3735-2014.odtlisting of matters and it’s extension is donethereafter. 25.In this backdrop, a pursis came to be filed bycontesting Respondent, Hidayatali, on 02.08.2023claiming that on 13.04.2023 the possession of thesubject land has been handed over to him. Thoughtechnically it would not be a case of contempt of Courtin view of the fact that interim relief was notcontinued for intervening period, however, fullyknowing the fact of pendency of Petitions since 2014and interim relief being granted at some point of time,neither it was proper on the part of the Authorities tohandover possessions of the lands in question nor wasit appropriate on the part of Respondent to take overpossession.26.In any case, Syed Hidaytali prima facie sincehad no right to have been appointed as successor on thebasis of writings/power of attorney by Syed Abdul Kasimneither he could be declared as successor nor he hasany right to receive possession of the properties inquestion by the Atiyat grant, and consequently hecannot be permitted to retain the possession thereof.UmeshPAGE 31 OF 33 924-WP-3735-2014.odtThe land, therefore, stands resumed in favour ofGovernment and till the issue of succession of Atiyatgrant is decided and till such determination, it wouldbe open for the Authorities to auction the same on ‘EkSal Lavani’ basis. 27.As a result of above discussion, the impugnedorder cannot sustain and deserves interference. Sincenumber of persons have claimed the succession inrespect of the Atiyat grant, it would be necessary todirect the Atiyat Court to conduct fresh inquiry bygiving an opportunity of hearing to all the Petitionersand Syed Hidayatali. The order of Additional Collector,Latur passed in proceedings bearing File No.2013/Religious/CR-96 dated 07.03.2014 stands set aside.28.The Atiyat Court of enquiry to decideapplications/proceedings raising claims of succession,in accordance with law and independently on merit afterhearing concerned parties and without gettinginfluenced by the observations made by this Courtherein above, which are made on prima facieconsideration of record.UmeshPAGE 32 OF 33 924-WP-3735-2014.odt29.Rule is made absolute in above terms.30.Petitions stand disposed of in above terms.31.Pending civil application(s), if any, standsdisposed of. (R. M. JOSHI, J.) Later on:32.After pronouncement of this judgment, learnedCounsel for contesting Respondent – Hidayatali seeksstay of the judgment passed by this Court for a periodof eight weeks.33.Learned Counsels for Petitioners and otherRespondents opposes grant of stay.34.In order to enable the Respondents to move theHon’ble the Supreme Court testing judgment passed bythis Court, the judgment passed by this Court standsstayed for a period of six (06) weeks from today. (R. M. JOSHI, J.) UmeshPAGE 33 OF 33