HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.5080 of 2009
Date: September 10, 2014
Between:
The Ashoorkhana Hazarath Abbas, a Wakf institution represented by its Muthawali, Shaik Hussain Saheb, Palukuru Village, Banaganapalli Mandal, Kurnool District.
… Petitioner And
1. The Director of Mines & Geology, Burugula Ramakrishna Rao Bhawan, Hyderabad & 6 others.
… Respondents * * * HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.5080 of 2009
O R D E R:
This writ petition was filed by a Wakf institution, represented by its Mutawalli, who also claims to be a lessee of mining lease granted by the Government in respect of an extent of 0.720 hectares in Survey No.288/1 and 1.214 hectares in respect of Survey No.293 of Palkur Village. The lease is in force till 16.08.2017.
2. Originally a lease was granted in favour of the 6th respondent by the first respondent for Lime Stone Slabs (Black) over an extent of 0.971 hectares in Survey No.293 of Palkur Village, Banaganapalle Mandal, Kurnool District, for a period of ten years after obtaining No Objection Certificate from the Mandal Revenue Officer, Banaganapalle and lease deed was executed on 05.08.2002. Similarly, the 5th respondent was also granted a quarry lease for Lime Stone Slabs (Black) over an extent of 0.720 hectares in Survey No.288/1 of the same village for a period of ten years and a lease deed was executed on 07.06.2004. Challenging the leases granted in respect of the land held by the Wakf institution, 4 persons filed W.P.No.4813 of 2005 and the said writ petition was dismissed with an observation that so long as registered sale deed exists in favour of the lessees, the action of the Mandal Revenue Officer in granting No Objection Certificate cannot be found fault with and the entries made in the Revenue records and the registered sale deeds executed by two sons of Abdul Rasool would not come in the way of Wakf Board in taking action for restoration of the property to Ashoorkhana in accordance with law. Thereafter, the Mandnal Revenue Officer, Banaganapalle, withdrew the No Objection Certificate issued in favour of respondents 5 and 6 in respect of the land belonging to the A.P. State Wakf Board. Consequently, the Deputy Director of Mines and Geology, Kurnool, vide Proceedings dated 27.07.2006 and 27.07.2006, cancelled the quarry lease held by respondents 5 and 6. Against the said orders of the Deputy Director of Mines and Geology, respondents 5 and 6 preferred an appeal and the appeal was allowed on 02.11.2006. After allowing the appeals and restoration of leases, the Assistant Director of Mines and Geology, Banaganapalle, issued proceedings dated 10.11.2006 submitting a report to the District Collector informing that since the sale deeds in favour of respondents 5 and 6 were not set aside, the leases were restored in their favour. The District Collector, vide his letter Rc.No.E8/3314/2006, dated 23.11.2006, informed that the sale deeds dated 28.05.1985 and 06.12.1985 in respect of Wakf land in Survey Nos.288/1, 288/3 and 293 of Palkur Village and the orders of the Deputy Director of Mines and Geology, Kurnool, dated 09.03.2002 and 05.08.2002 are null and void under Section 51 of the Wakf Act, 1995. In the meanwhile, the A.P. State Wakf Board, Hyderabad, initiated action under Sections 51 and 52 of the Wakf Act, 1995, annulling the sales on 31.08.2006. Ultimately, the leases in favour of respondents 5 and 6 were cancelled on 27.07.2006 as stated above.
3. The petitioner filed W.P.No.25517 of 2006 challenging the appellate order dated 02.11.2006 of the first respondent in the appeals preferred by respondents 5 and 6 and this Court, by order dated 08.02.2007, set aside the order of the first respondent dated 02.11.2006 by giving liberty to respondents 5 and 6 to approach the Wakf Tribunal if they are interested. Respondents 5 and 6, in stead of approaching the Wakf Tribunal, submitted a representation to the Government and the Government on the basis of the said representation, without issuing any notice to the petitioner, issued a Memo No.13044/M.II(1)/2008-2 dated 17.02.2009, directing the Director of Mines and Geology, Hyderabad, to restore the quarry leases previously held by respondents 5 and 6 subject to the condition of producing a No Objection Certificate from the Wakf Board and cancelling the quarry leases held by the petitioner in respect of Survey Nos.288/1 and 293 of Palkur Village, Banaganapalle Mandal, Kurnool District. The said order of the Government, the 7th respondent, is under challenge in the present writ petition.
4. The learned senior counsel for the petitioner submits that the order in W.P.No.25517 of 2006 dated 08.02.2007 has become final as respondents 5 and 6 did not approach the Wakf Tribunal in spite of liberty given to them. He also submits that when the leases of respondents 5 and 6 were cancelled, the 7th respondent cannot restore the said leases and in any event the order passed by the 7th respondent on 17.02.2009 is in violation of the principles of natural justice, as no notice was issued to the petitioner and it does not contain any reasons.
5. The learned standing counsel for the Wakf Board also supports the contention of the petitioner and submits that respondents 5 and 6 have no right to get lease of the land belonging to the A.P. State Wakf Board and it is presently held by the petitioner in whose favour a lease is also subsisting till 16.08.2017.
6. A perusal of the impugned order indicates that the Director of Mines and Geology received a communication from the CEO, A.P. State Wakf Board, Hyderabad, requesting the Government to consider the case of four individuals to lease out the land for mining operations by adopting the procedure of putting the matter in public auction which may fetch more income to the Wakf institution as well as the Wakf Board, since the Mutawalli failed to pay Rs.8,000/- per acre per annum and the permission issued by the CEO earlier was deemed to have been cancelled. When the Government has noticed that there is subsisting lease in favour of the petitioner, the petitioner ought to have been put on notice before passing an order. Further, respondents 5 and 6 did not approach the Wakf Tribunal pursuant to the liberty given in W.P.No.25517 of 2006 dated 08.02.2007 and directly submitted a representation to the 7th respondent who indirectly upset the order passed in W.P.No.25517 of 2006 by setting aside the appellate order of the first respondent dated 02.11.2006.
7. In the circumstances, the writ petition is allowed and the impugned Memo No.13044/M-II(1)/2008-2, dated 17.02.2009, passed by the 7th respondent is quashed. Pending miscellaneous petitions, if any, shall stand closed in consequence. No costs.
A. RAMALINGESWARA RAO, J Date: September 10, 2014 BSB
2 HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO
WRIT PETITION No.5080 of 2009
Date: September 10, 2014
BSB