MOHAMMED ABDUL HAMEED Vs. ZULFIKHAR AHMED

JUDGEMENT

(1.) This Civil Revision Petition is filed by the petitioner/plaintiff against the judgment and decree, dated 04.04.2006, in O.S. No. 56 of 1998 on the file of the Andhra Pradesh Wakf Tribunal, Hyderabad (the Tribunal). For the sake of convenience and to avoid ambiguity in the discussion, the parties will be referred to hereinafter as they were arrayed in the suit.

(2.) The plaintiff herein filed the above-mentioned suit for declaration that the construction made by the 1st defendant on the graveyard land is illegal, for perpetual injunction restraining the 1st defendant, his agents, henchmen, relatives and anybody claiming through him from interfering with the graveyard land of Bur Houz Goshamahal, Hyderabad, for mandatory injunction against the defendants for removal of the construction made on the graveyard land and to remove dumped material on it, for a money decree against defendant No. 1 for illegally using the graveyard land by dumping the construction material on it and for costs of the suit.

(3.) There is an old graveyard called "Graveyard Burhouz", Goshamahal and it is registered as wakf and managed by the Muthawalli and the present Muthawalli is the plaintiff. At the eastern side of the graveyard abutting street, there was encroachment by the 1st defendant and he opened doors at the western side of his occupied house No. 15-1-300 at about 169, sq. Yards of graveyard. The plaintiff complained against encroachment and opening of the doors and window in the graveyard land. But, the 2nd defendant has not taken any effective steps and neither the Municipal Corporation of Hyderabad nor the Police has protected from encroaching and opening the doors and thereby the 1st defendant has habitually become law breaker and trouble monger for the institution of the graveyard and it is managing affairs ignoring that the graveyard cannot be used for any other purpose against the tenements of Islam and feeling and sentiment of kith and kin of the buried. The 1st defendant as self styled leader of the locality people have won over the political parties and in fact made proposals for laying road and the water supply pipeline in the middle of the graveyard land against the interest of the institution. The 1st defendant and his henchmen made to attempt to make use of the open land of the graveyard for playground and they would have succeeded in their evil attempts, had the plaintiff been little lethargic. The 1st defendant started the construction of his occupied house No. 15-1-300 which is on the encroached land of the graveyard without proper municipal permits and plans and without No Objection Certificate from the 2nd defendant abutting and encroaching the graveyard land during the first week of April, 1998. Immediately, the plaintiff has complained to the 2nd defendant, police and Municipal authorities, but they have not taken any action as per law. The Municipal authorities, particularly, the Assistant Town Planner, Circle No. II under the 3rd defendant have ignored their prime and foremost duty to implement the Municipal law and save the wakf land. The 1st defendant against the law and without any authority on 14.4.98 entered the graveyard and dumped the construction material on the graveyard open land by removing the boundary stones. The plaintiff has complained to the Police Inspector, Begum Bazar, Hyderabad, but the police has not taken any action as per law and did not launch prosecution against the 1st defendant. The 2nd defendant after great persuasion deputed their surveyor who made detailed survey of the graveyard and reported the matter to the higher authorities for their action. Thereupon, a notification u/s 54(1) of the Wakf Act, 1995 (for short 'the Act') issued and the time specified in the notice elapsed long back, except above notice, the 2nd defendant could not take any effective action to stop the construction made by the 1st defendant and protect the graveyard. Taking advantage of the situation and the lethargic attitude of the 2nd and 3rd defendants, the 1st defendant has speed up the construction work day and night and he intoxicated any support of anti-social elements and without minding the notice issued u/s 54(1) of the Act and by-passing the Municipal laws attempted to complete the construction work with an evil intention to cause loss to the institution. Hence, the suit.