Director of Endowments Government of Hyderabad and Ors. vs Akram Ali

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Appeal (civil) 19 of 1955

Decision Date: 22/04/1955

Coram: V. Bose, B. Jagannadhadas, B.K. Mukherjee (CJ), T.L.V. Aiyyar, S.J. Imam

In this matter, the Court recorded that the appeal, designated as Appeal (civil) 19 of 1955, was decided on 22 April 1955 by a bench comprising Chief Justice B.K. Mukherjee, Justice V. Bose, Justice B. Jagannadhadas, Justice T.L.V. Aiyyar and Justice S.J. Imam, and that the judgment was reported in AIR 1956 SC 60. The petitioner was identified as the Director of Endowments of the Government of Hyderabad together with other parties, while the respondent was named as Akram Ali. The respondent had earlier instituted a petition under Article 226 of the Constitution before the High Court of Judicature at Hyderabad, seeking a writ of mandamus directing the Director of Endowments to deliver to him the management, possession, and income of a shrine identified as the Dargah of Jehangir and Burhan‑ud‑din Piran, together with the adjoining hereditary lands.

The High Court entertained the petition, granted the writ and consequently the State of Hyderabad appealed the order. The respondent based his claim on the assertion that the Dargah housed the tomb of one of his ancestors and that he and his forebears had exercised the hereditary duties of Sajjada and Mutawalli at the shrine for many generations. He recounted that in 1914, during the tenure of his brother Syed Hussain, the Ecclesiastical Department of the State intervened and placed the supervision of the Dargah in the hands of an individual named Azam Ali. After Azam Ali’s removal in 1920, the Ecclesiastical Department assumed direct supervision pursuant to a Firman issued by the Nizam, which directed the Department to continue supervision until the competing parties’ rights were investigated and determined. The respondent contended that civil courts had examined those rights, that the High Court had eventually ruled entirely in his favour, yet despite that judgment he remained excluded from possession and therefore again petitioned for mandamus to compel the Director to restore possession and management of the Dargah to him.

The High Court, through the judgment of Justice Shripat Rao, held that the Firman of the Nizam lost its validity after the commencement of the Constitution, rendering the Government’s subsequent possession unlawful; Justice Rao further concluded that because the Ecclesiastical Department had taken possession from the respondent, it was bound to return the Dargah to him. Justice Mir Siadat Ali Khan, however, reasoned that the Firman had already served its purpose, that the Dargah was not waqf property, and therefore the Department’s supervision should cease; on that basis, and because the respondent’s opponent had been defeated in the civil suit and the respondent had been dispossessed for a generation, the Court ordered that the respondent be placed in possession. The learned Attorney‑General, appearing for the appellants, challenged the correctness of most of the factual premises on which the High Court judges had based their conclusions, but the Court indicated that it would not address those challenges in detail at that stage.

The Court observed that it was not necessary to delve into the detailed documentary material that had been presented by the respondent’s counsel. The counsel had painstakingly gone through the documents in order to demonstrate that the respondent and his ancestors had possessed the Dargah for generations and that the Ecclesiastical Department had subsequently taken possession from him. He further asserted that the respondent’s lineage could be traced back at least to his grandfather, Syed Mir Saheb, and that the records showed Syed Mir Saheb had been a hereditary Sajjada of the Dargah. The Court deemed all of those assertions to be irrelevant to the present proceedings. It stated that the petition and the appeal could be disposed of swiftly on a different ground. The Court also made clear that it would not pass any comment on the factual question of title or possession so as not to prejudice any future litigation that might arise. It said that, without deciding the issue, it would assume the respondent’s statements about his hereditary rights and his possession to be true. Nonetheless, the Court held that any right to possession the respondent might have held was placed in abeyance by the Firman dated 31‑12‑1920, and that no later order of the Civil Courts had removed that limitation. Consequently, because the respondent possessed no “present” right to possession, the Court could not issue a writ of mandamus. The Court further clarified that it was not suggesting that a writ would be the proper remedy should the respondent later be able to prove a right to possession, because the question did not arise – the respondent, in fact, had no current right to possession.

The Court then set out the factual background that led to the issuance of the Firman. Disputes over the right to possess and supervise the Dargah appeared to have begun around 1914, when, according to the respondent’s own petition, the Ecclesiastical Department transferred supervision to Azam Ali. Additional trouble emerged in 1918, when a complaint was made to the First Taluqdar alleging improper police interference. This complaint prompted the Director of the Ecclesiastical Department to write to the Home Secretary on 8‑9‑1918, recommending that the Dargah and its income remain under Government supervision until one of the various claimants could establish his right. On 27‑1‑1920 the same Director issued what is described as a judgment. In that document he outlined the competing claims of the various claimants and declared that a dispute concerning title must be decided by a Court of law rather than by the Ecclesiastical Department. He therefore directed that any person who was out of possession should approach the Courts to establish his rights. After examining the situation, the Director found that Mahbubali, Syed Hussain (the respondent’s brother) and Mohammed Jahangir, identified as “Mujawirs,” had been in possession before being dispossessed. He ordered that these three individuals be restored to possession and that the person who was out of possession should be instructed to seek his remedy in a Court of law.

In the judgment the Court observed that the dispute had apparently been escalated to the Nizam by the Ecclesiastical Department, since on 31‑12‑1920 the Nizam issued a Firman in compliance with a petition filed by that Department. The Firman stated: “Pending enquiry of the case the said Maash need not be handed over to anyone. Let it remain in the supervision of the Government. I should be informed of whatever the results of the enquiry establishes so that proper orders may be passed.” The Court explained that at the relevant time the Nizam possessed absolute sovereign authority over all internal matters, and his command was regarded as law. Whether the Nizam’s actions were labelled legislation, an executive act, or a judicial determination was immaterial, because an absolute ruler’s will could not be neatly separated into distinct functional categories. Consequently, every proclamation made through a Firman carried the combined force of statutory law and the decree of a court, a principle affirmed by this Court in Ameerunnissa Begum v. Mahboob Begum, AIR 1955 SC 352. Accordingly, the effect of the 31‑12‑1920 Firman was to deprive the respondent and all other claimants of any entitlement to possession “pending enquiry of the case.” Although the precise meaning of that phrase was not explicitly defined, the Court inferred from the surrounding circumstances and the earlier decision of the Director of the Ecclesiastical Department that the Firman intended to suspend any existing right to possession until such right could be determined by the civil courts, as the Director had twice indicated. The Court then noted that, given the Nizam’s absolute power, his will expressed in the Firman constituted the law of the land. Even assuming that the respondent was actually in possession, his immediate right to possession—whatever its nature—was withdrawn and held in abeyance until he could establish a claim before the civil courts. The Court next considered whether the advent of the Constitution altered this situation or revived any erstwhile right to possession that the respondent might have possessed. It held clearly that the Constitution brought no change to the legal effect of the Nizam’s Firman. The parties conceded that the Nizam possessed the authority to confiscate the property entirely and remove it from the respondent “in toto.” They also conceded that, if such total confiscation had occurred, the extinguished rights would not revive, because the Constitution guarantees to a citizen only those rights that existed at the moment it came into force; it does not create new rights or restore those that have been surrendered, except in the limited ways permitted by the Constitution. Nonetheless, the Court emphasized that if the Nizam could eliminate every trace of a right by a Firman, he could equally eliminate only a portion of that right, leaving the remainder intact at the date the Constitution commenced. Thus, at the moment the Constitution became operative, the respondent possessed at most a contingent right to be restored to possession upon successful proof of his claim in a court of law, and no immediate right to possession existed.

At the moment the Constitution became operative, the respondent possessed only the remainder of any rights that survived the earlier confiscation; he did not retain the entire bundle of rights that might have existed before. Consequently, even if every factual allegation presented by the respondent were accepted, the legal position remained that on the Constitution’s commencement he lacked any enforceable claim to immediate possession of the property. The most that could be said was that he retained a prospective entitlement to have possession restored, but only after he successfully proved his title before a civil court.

The High Court had relied upon a previous decision of this Court in Ameerunnissa Begum v. Mahboob Begum, [1953] 4 SCR 404, and had characterised the Nizam’s Firman that conflicted with the Constitution as ultra‑vires. However, the learned judges had not observed that in the cited case the Firman was issued after the Constitution came into force, not before. The Court noted that even if that authority were inapplicable, other precedents addressed the issue. In Syed Qasim Razi v. State of Hyderabad, 1953 Cri LJ 862, the majority held that a law which would have been invalid had it been enacted after the Constitution lost its operation after that date. The Court quoted the passage from that decision (page 161): “The effect of Article 13(1) of the Constitution is not to obliterate the entire operation of the inconsistent laws or to wipe them out altogether from the statute book; for to do so will be to give them retrospective effect which they do not possess. Such laws must be held to be valid for all past transactions and for enforcing rights and liabilities accrued before the advent of the Constitution.” The Court regarded this reasoning as conclusively settling the point of law.

The sole remaining question was whether the respondent had obtained a civil‑court judgment confirming his right to possession of the Dargah and any other assets that the Ecclesiastical Department had taken over under the Firman. The matter had indeed been pursued through the civil courts, but the Court indicated that it need not retrace the entire procedural history or examine each stage of the litigation. The focus was limited to the final judgment rendered by the High Court.

The suit had been instituted by Azam Ali, who had been entrusted with the supervision of the Dargah by the Ecclesiastical Department in 1914 and who had been removed from that position in 1920. The present respondent, Akram Ali, was named as one of the defendants. When the case reached the High Court, the judges made several findings. They held that the plaintiff’s claim—or that of his ancestors or any descendants of the saint of the Dargah—of being a Sajjada was not established by the evidence. Moreover, it was not proven that there existed any other Sajjada with respect to the Dargah, nor that the office of Sajjadagi had ever been founded or continued there. These observations formed part of the High Court’s reasoning in affirming the decisions of the lower courts that had dismissed the plaintiff’s suit.

The Court stated that the evidence did not establish the Sajjadagi of any of the defendants. It explained that, for the reasons previously set out, none of the defendants could be shown to be entitled to the office of Sajjadagi. Consequently, the Court found that no party was proved to possess the Sajjadagi. The Court further observed that the objections raised against the plaintiff’s evidence applied equally to the evidence presented by the defendants. Because the very existence of a Sajjadagi in the Dargah Sharif was not proved, the Court held that no question remained as to who might be the Sajjada. The Court could not deny that the plaintiff’s evidence was stronger and more persuasive than the evidence of the defendants. The Court added that, even if it had been required to designate any party as Sajjada on the basis of the evidence, the judgment would have been in favour of the plaintiff. Accordingly, the Court upheld the decisions of the lower courts that had dismissed the plaintiff’s suit.

The counsel for the defendant‑respondent argued that the judgment did not prejudice his client because, even if the client were not the Sajjada, the conclusion would make no difference to his claim. He maintained that his client had been in possession at all relevant times, equating his client’s possession with that of his brother, and contended that, now that civil litigation had ended unfavourably for the opposing party, the respondent should be restored to possession. The Court noted, however, that the Firman did not support that view. The Court explained that, at the date of the Constitution and now, the respondent’s rights, if any, required him to establish his right to possession in a civil court before seeking to be placed in possession. Because no civil court had declared the respondent’s right to possession, the Court held that, on that sole ground, the respondent could not obtain the writ he sought. Consequently, the Court allowed the appeal, set aside the decision of the High Court, dismissed the respondent’s petition for a writ, and ordered that no costs be awarded in any of the courts.