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Judgment
S.V. Maruthi, J.—The Writ Appeal is filed against the judgment of the learned single Judge dismissing W.P. No. 11519 of 1991 filed by the appellants.
The petitioners, two in number, belong to the minority community of Lepakshi village. They filed the writ petition for a writ of mandamus directing the respondents 1 to 3 not to interfere with the peaceful possession of the grave-yard situated at Lepakshi village, in S.No. 411/3-B ad measuring Ac. 1.68 cts. and further direction to grant permission for the construction of muslim shopping complex in S.No. 411/3-B belonging to Muslim Mosque, Lepakshi village.
The case of the petitioners is that Ac. 1.68 cents of land in S.No. 411/3-B situated at Lepakshi village was allotted to muslim community about 100 years ago and the same was classified as burial ground. Since then they were in possession and erected a compound wall fencing around the land after obtaining permission of Sub-Collector, Penukonda on 19-9-1901. By virtue of the user, the land has become a wakf as contemplated under the Wakf Act, 1954. The Gram Panchayat of Lepakshi village granted exemption from payment of tax on the trees standing on the said land from the year 1961-62 onwards. In the said land, they have constructed a mosque about 20 years back and the muslims were offering prayers regularly in the said mosque. Out of the extent of Ac. 1.68 cents, in one part of the land, five shops were constructed and were let out to Grameena Bank to augment the financial resources to the muslim community for incurring expenditure etc. The authorities of the mosque proposed to construct nine more shops adjoining the five shops which were under construction on the front side abutting the main road Hindupur-Kodikonda. Since the area which was put to use as burial was congested, some other place was chosen for the burials of muslim community and as there was vacant space by the side of the burial ground, the said place was used for construction of mosque and the remaining vacant space for the purpose of construction of five shops. Since by the user, the said vacant land has become a wakf property, the Wakf Board is entitled to manage the same. Petitioners-Appellants put up small wooden bunks in the space adjoining the five shops which were burnt and criminal proceedings were pending against those who were responsible for the mischief. Meanwhile, respondents 2 and 3 viz., Mandal Revenue Officer and Gram Panchayat started interfering with the possession of the petitioners property in S.No. 411/3-B. Therefore, they filed the writ petition for a writ of mandamus restraining the respondents from interfering with their possession.
In the counter-affidavit filed before the learned single Judge, it is admitted that the said land was ear-marked for burial ground, but the same was not being utilised for the purpose of burials of muslim community and, therefore, the land is not a wakf property. The muslim burial ground was shifted to some other place and on a part of the land, mosque was constructed and on the remaining land five shops were constructed. After excluding the mosque and the five shops, there remains Ac.0.15 cents and out of that 15 cents of land, 8 cents of land was covered by rastha and in respect of seven cents of land a children''s park was laid on 7-4-55 by Sri M.P. Pai, the then Member of Board of Revenue, Andhra State and compound wall was constructed encircling the said park area. It was further stated in the counter-affidavit that the entire land of Ac. 2.69 cents in S.No. 411/3-B is a Government Poramboke land and that no compound wall was erected in respect of Ac. 1.68 cents. The Children''s park in seven cents had been in existence since 1955 and as the same was not being maintained properly, people of both communities viz., Hindus and Muslims occupied it by erecting petty bunks. When the trouble sparked and petty bunks were burnt in the park area, the Collector, Anantapur inspected the site personally and passed orders in proceedings Rc. NC1 /815/90 dated 11-4-90 permitting the muslim community to complete the shopping complex comprising those five shops subject to the condition that no further construction shall be taken up apart from the said shopping complex comprising five shops already in progress. A further condition was imposed that the income from the shops should be utilised for the benefit of the muslim community. The muslim community accepted the order of the Collector and in pursuance of the same, the construction of five shops was completed.
On a consideration of the material, the learned single Judge dismissed the writ petition holding that the area of eight cents of land covered by rastha and seven cents covered by park were never put to use by the muslim community for burial ground and therefore it can never be construed as wakf property and it continued to be the Government property for the benefit of public at large and they are the properties of the Gram Panchayat, aggrieved by which, the present writ appeal is filed.
The main contention of Sri Chari is that the disputed area is a wakf property and it is only the Wakf Board which is entitled to manage the property. Originally Ac. 1.68 cents of land was granted to the muslim community for the purpose of burial ground. In the said land, they have constructed a mosque and to cater to the needs of those who attend to the mosque shops were constructed. Since the land was granted for the purpose of burial ground, it has become the wakf property by user. Therefore, the authorities have no jurisdiction to interfere with their possession. In support of his contention he relied on a judgment of the Supreme Court in Syed Mohd. Salie Labbai (Dead) by L.Rs. and Others Vs. Mohd. Hanifa (Dead) by L. Rs. and Others, ., wherein it was held that
".........if any member of the public is permitted to be burried in a grave-yard and this practice grows so that it is proved by instances adequate in character, number and extent, then the presumption will be that the dedication is complete and the grave-yard has become a public grave yard where the Mahommedan public will have the right to bury their dead. It is also well settled that a conclusive proof of the public grave-yard is the description of the burial ground in the revenue records as a public grave-yard.
"Once a Kabarasthan has been held to be a public grave-yard then it vests in the public and constitutes a wakf and it cannot be divested by non-user, but will always continue to be so, whether it is used or not".
In view of the above, the learned counsel submits that merely because a part of the land granted to the muslim community has not been used as a burial ground and shops are constructed, it does not cease to be a wakf property and therefore the maintenance of such property always vests in the Wakf Board.
He also brought to our notice the following observations of this Court in Andhra Pradesh Wakf Board, Hyderabad Vs. S. Syed Ali Mulla and Others, .
"Wakf in its nature is a permanent dedication of property for a purpose recognised by the Muslim Law as pious, religious or charitable. When once the property i.e. inam land is held to be a wakf and would be governed by the provisions of the Wakf Act and the grant of a patta in favour of the individuals under the Inams Abolition Act would not affect in any manner the original wakf character of the property".
He, therefore submitted that the original grant being for the purpose recognised by the Muslim Law as pious, religious or charitable, it does not cease to be a wakf property merely because a part of the land has not been used as a burial ground. Learned counsel also brought to our notice the following observations of the Supreme Court in Mohammad Shah Vs. Fasihuddin Ansari and Others, .
"That this area also includes the shops and Chabutra shown to the west of the mosque in the plaint map on a traingular piece of land".
He also relied on a judgment of this Court in Kadiyam Mallayya v. The District Judge, West Godavari, Eluru 1988 (1) ALT160., wherein it was held that mere notice issued by the Collector to persons in possession of wakf property to hand over possession without prior notice of determination of their rights is not valid.
The dispute in this case, therefore, is whether the property is a wakf property belonging to the muslim community or it is a Government poramboke land belonging to the Gram Panchayat. The learned Judge found that an extent of 8 cents is a rastha and an extent of 7 cents is a Government poramboke land belonging to the Gram Panchayat. Since the dispute relates to the nature of land, which is of civil nature, the same cannot be decided under Article 226 of the Constitution of India. The decisions relied upon by the learned counsel arose out of the civil suits filed by the parties. Therefore, it is open to the petitioners to seek remedy in an appropriate forum.
The writ appeal is, therefore, dismissed. However, status quo as on to-day will continue for a period of three months. Meanwhile it is open to the petitioners to seek remedy in an appropriate forum. There will be no order as to costs.