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Lanco Hills Technology Park Private Limited Vs. Mahaboob Alam Khan and Others - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Case NumberCIVIL REVISION PETITION Nos.4958, 5028, 5314 of 2007 AND 521, 1384, 1444 and 2304 of 2011
AppellantLanco Hills Technology Park Private Limited
RespondentMahaboob Alam Khan and Others
constitution of india article 227 - wakf act, 1995- section 83 - civil revision petition – writ filed against the orders passed by wakf tribunal – dargah managed by a committee and registered as wakf which was notified in gazette - nature and object of wakf is fateha, prayer and residence of muthavalli - dargah claims that extent of one acre = 40 , remained unnotified even through various documents issued, and high court, declared the land as grant to dargah - wakf board addressed the survey commissioner to send the necessary amendment to include the land in the notification - as per the request, second survey report sent the along with the details of service inam land attached to it - board issued an addendum/errata to earlier notification declaring that the subject land,.....common order: v.v.s.rao, j. these petitions under article 227 of the constitution of india are against the orders passed by the andhra pradesh wakf tribunal (the wakf tribunal, for brevity). the contentious issues survive only in crp nos.1384 and 1444 of 2011. the andhra pradesh state wakf board (the wakf board, for brevity) and dargah hazrat hussain shah vali (the dargah, for brevity) join the issue with the petitioners therein. all other revisions do not require adjudication for one reason or the other. at the outset, be it recorded that a decision of the wakf tribunal shall be final and binding on the parties to the application and no appeal shall lie against the decision or order whether interim or otherwise given or made by the wakf tribunal (sections 83(2), (7) and (9) of the wakf.....


V.V.S.Rao, J.

These petitions under Article 227 of the Constitution of India are against the orders passed by the Andhra Pradesh Wakf Tribunal (the Wakf Tribunal, for brevity). The contentious issues survive only in CRP Nos.1384 and 1444 of 2011. The Andhra Pradesh State Wakf Board (the Wakf Board, for brevity) and Dargah Hazrat Hussain Shah Vali (the Dargah, for brevity) join the issue with the petitioners therein. All other revisions do not require adjudication for one reason or the other.

At the outset, be it recorded that a decision of the Wakf Tribunal shall be final and binding on the parties to the application and no appeal shall lie against the decision or order whether interim or otherwise given or made by the Wakf Tribunal (Sections 83(2), (7) and (9) of the Wakf Act, 1995 (the Wakf Act). Nonetheless the proviso to Section 83(9) of the Wakf Act vests revisional jurisdiction in the High Court to call for and examine the records relating to a decision or order of the Wakf Tribunal, for the purpose of satisfying itself as to the correctness, legality or propriety of such an order. The provision enables the High Court to confirm, review or modify the decision impugned. The civil revision petitions, as mentioned at the outset, are curiously filed under Article 227 of the Constitution. When statutory forum is created for redressal of grievance, even if it is High Court, a revision under Article 227 is not maintainable (Sadhana Lodh v National Insurance Co. Ltd., (2003) 3 SCC 524 : AIR 2003 SC 1561 and Raj Kumar Shivhare v Directorate of Enforcement (2010) 4 SCC 772).

The brief background facts culled out from CRP No.1384 and C.R.P.No.4958 of 2007 are the following (parties referred to as arrayed in the first petition). The Dargah; managed by a committee, is a registered Wakf. It was notified in the Andhra Pradesh Gazette No.6A, dated 09.2.1989 at Sl.Nos.3057, 3058 and 3059 showing an extent of 3,165 Sq.yards of Dargah, 1,272 Sq.yards of Khanqah with mosque and Well, and 1,069.5 Sq.yards of house on the northern side of Khanqah in Survey Nos.260/1, 261 and 262. The nature and object of the Wakf is Fateha, prayer and residence of Muthavalli. The Dargah claims that a large extent of Acs.1,654.32 guntas One acre = 40 guntas; one gunta = 121 Sq.yards. comprised in about 78 survey numbers situated at Manikonda Jagir village of Rajendranagar Mandal in Ranga Reddy District (hereafter Manikonda lands or subject land) remained unnotified even through various documents viz., Muntakhab No.2643, (31 Amardad 1300 Fasli) 1890 AD issued prior to the VI Nizam, the orders of the Nazim-e-Atiyat, and the High Court of Andhra Pradesh, declared the land as grant to the Dargah.

The Wakf Board by letter dated 02.09.2005 addressed the Survey Commissioner of Wakfs to send the necessary amendment to include the land in the notification. In response thereto, the latter vide letter dated 30.09.2005 sent the second survey report along with the details of service inam land attached to it. Some time thereafter, the Wakf Board issued an addendum/errata to earlier Notification declaring that the subject land, “as the service inam lands attached to the subject institution were not notified earlier”. In the meanwhile, the Government of A.P., alienated Manikonda lands to Andhra Pradesh Industrial Infrastructure Corporation Limited (APIIC). They in turn allotted considerable extents of lands to unofficial respondents (allottees, for brevity) mostly for establishment of ICT enabled enterprises. There are writ proceedings before this Court initiated by persons acting pro bono publico or Dargah. Indeed, the Government of A.P., also filed a writ petition seeking invalidation of the errata notification. In all these proceedings, the Government as well as allottees questioned the addendum issued by the Wakf Board attaching Manikonda lands to the Dargah. M/s.Mehaboob Alam Khan and Ibrahim Bin Abdullah Masquati (hereafter, persons interested) filed O.S.No.99 of 2007 before the Wakf Tribunal under Sections 6(1) and 83(2) of the Wakf Act asserting that they are not Government lands and the alienation in favour of respondents is illegal. They sought for a declaration that Manikonda lands are registered wakf properties attached to the Dargah; to declare the sale deeds in favour of respondents as null and void; direct the official respondents to take action to preserve and protect the lands under the management of Wakf Board and direct all the allottees to deliver possession of the land to the Wakf Board or Dargah. Along with the said suit, two interlocutory applications –being I.A.No.521 of 2007 seeking an interim injunction restraining the allottees from transferring the land or in any manner part with possession; and another being I.A.No.522 of 2007 for an interim injunction restraining the allottees of land from making any construction or altering physical features of the land were filed. On 04.10.2007, the Wakf Tribunal passed following order in I.A.No.521 of 2007.

Upon the motion made unto this Tribunal by Sri B.Nalin Kumar, Advocate for the petitioners/plaintiffs. Heard. Perused the affidavit petition and documents filed which reveals that the suit schedule land admeasuring Ac.1654.32 guntas situated at Manikonda Jagir Village, Rajendranagar Mandal of Ranga Reddy District is notified Wakf land. The respondents Nos.9 to 15 are in unlawful possession of the same and some of the respondents have started construction over the suit land and some of them are planning to do so. If the said respondents are successful the very nature of suit land would be changed. The respondent Nos.9 to 15 are also trying to induct new persons by way of alienation, it leads to multiplicity of litigation and irreparable loss to the beneficiaries of Wakf and the very object of the Wakf would be defeated. There is prima facie case and balance of convenience in favour of the Wakf institution. Under these circumstances, the respondent Nos.9 to 15 are restrained from alienating any part of suit land to third persons and parties until 18.10.2007. I.A.Posted to 18.10.2007.

(emphasis supplied)

On the same day, the following order was passed in I.A.No.522 of 2007.

Upon the motion made unto this Tribunal by Sri B.Nalin Kumar, Advocate for the petitioners/plaintiffs. Heard. Perused the affidavit petition and documents filed which reveals that the suit schedule land admeasuring Ac.1654.32 guntas situated at Manikonda Jagir Village, Rajendranagar Mandal of Ranga Reddy District is notified Wakf land. The respondents Nos.8 to 15 are in unlawful possession of the same and some of the respondents have started construction over the suit land and some of them are planning to do so. If the said respondents are successful the very nature of suit land would be changed. The respondent Nos.8 to 15 are also trying to induct new persons by way of alienation, it leads to multiplicity of litigation and irreparable loss to the beneficiaries of Wakf and the very object of the Wakf would be defeated. There is prima facie case and balance of convenience in favour of the Wakf institution. Under these circumstances, the respondent Nos.8 to 15 are restrained from continuing any construction work, starting new construction activity, laying roads and changing the nature of the suit land in any manner whatsoever until 18.10.2007. I.A.Posted to 18.10.2007.

After service of notices on the respondents, the Wakf Tribunal passed reasoned orders in both the interlocutory applications on 01.11.2007 extending the ad interim orders until 19.11.2007. The order, dated 01.11.2007, in I.A.No.521 of 2007, reads as under.

Memo filed by counsel for petitioner stating notices were served on R.10, R.11, R.13 and R.15. Smt Manjira Venkatesh filed memo to extend time to file memo of appearance on behalf of R.1, R.4 to R.7 and R.16. Sri C.Kodanda Ram, Advocate filed vakalat for R.10 and R.14. Sri V.Vijay Kumar, Advocate filed vakalat for R.11. Sri D.Pavan Kumar, Advocate filed vakalat for R.12. Sri N.Harinath Reddy, Advocate filed memo offering vakalat for R.13. R.15 called absent. No representation. Notice awaited. Counter filed by R.1, 4 to 7, 16 and R.10.

Heard the counsel on record. The counsel for petitioner filed a memo to extend the interim order dated 04.10.2007. The respondents companies and the Government of A.P., opposed the same. The respondent No.2 A.P.Wakf Board and Respondent No.3 Dargah requested to extend the interim orders. The specific contention of Respondents/companies and the Government of A.P., is that in the light of the interim orders passed in Writ Appeal No.796, 805 and 826/2007 on 26.10.2007, the interim order dated 04.10.2007 cannot be extended. Some of the respondents have not filed counters yet. The counsel for petitioners want time to go through the interim order passed in Writ Appeal and submit arguments in this I.A.

The respondents/companies have vehemently contended that the land shown in suit schedule is not a Wakf land. Under Section 83 of the Wakf Act, 1995, this Tribunal has jurisdiction to determine the character of suit land. The parties to the proceedings have to be given an opportunity to file counter and submit their case. The respondent No.10 is said to be proceeding with construction and alienating the suit land. Though the respondents/companies contended that they invested huge amount and employed hundreds of workers. The petitioner, Wakf Board and Dargah concern have to be given an opportunity, along with other respondents who have not filed their counters to put forth their case.

Under these circumstances if interim order dated 04.10.2007 is extended no irreparable loss would be caused to the respondents companies. Therefore, the interim order passed in this I.A. on 04.10.2007 is extended till 19.11.2007. For counters and hearing call on 19.11.2007.

(emphasis supplied)

A similar order was passed on 01.11.2007 in I.A.No.522 of 2007 and in I.A.No.521 of 2007. Against the said orders, dated 01.11.2007, Lanco Hills filed two revision petitions being C.R.P.Nos.4958 and 5028 of 2007 against the order, dated 01.11.2007, in I.A.No.522 of 2007 and against the order of even date in I.A.No.521 of 2007. The APIIC filed C.R.P.No.5314 of 2007 against the order in I.A.No.522 of 2007 extending ad interim injunction. The counsel appearing for rival parties do not dispute that in view of the subsequent order passed by the Tribunal in another suit, these civil revision petitions do not survive, need disposal in terms of the order to be passed in C.R.P.No.1384 of 2011.

Hence, it is necessary to mention about simultaneous writ proceedings in this Court. A Member of Legislative Council Mr.H.A.Rahman filed W.P.No.17192 of 2007 for declaration that the action of the Government and its agents in allotting different extents of Manikonda lands to contesting respondents as illegal and prayed for quashing these allotments. A miscellaneous application being W.P.M.P.No.21993 of 2007 was allowed on 20.09.2007 by learned single Judge of this Court, directing Emmar Properties and Lanco Hills not to make any construction in an extent of Acs.400.00 in survey Nos.203/1 and Acs.108.10 guntas in survey No.201. Being aggrieved, the State as well as the affected parties filed writ appeals being W.A.Nos.796, 805 and 826 of 2007. By order, dated 26.10.2007, the Division Bench set aside the order of the learned single Judge observing that, “if the construction is stopped, thousands of workers and other employees would be deprived of livelihood and the allottees would suffer irreparable injury in as much as they will have to stop the ongoing projects, some of which are at the stage of completion”.

The Dargah also instituted O.S.No.7 of 2011 before the Wakf Tribunal for recovery of possession of Manikonda lands (described in Schedules A to K of the plaint) and for damages and compensation for wrongful use of the properties by respondents 2 to 15 herein. The basic pleadings in this suit are similar to those in the suit filed by the persons interested. The Dargah’s case fount, among others, is the A.P.Gazette No.6A dated 09.02.1989 with its addendum dated 06.04.2006. An interlocutory application being I.A.No.24 of 2011 was filed under Order XXXIX Rules 1 and 2 and Section 151 of Code of Civil Procedure, 1908 (CPC) and Section 83(5) of the Wakf Act. An ad interim injunction was sought restraining respondents 2 to 10 and 12 to 15 from alienating or transferring any part of the Manikonda lands which was transferred to them by the second respondent. From the record it is revealed that the suit and the interlocutory application were filed on 11.01.2011. The Wakf Tribunal ordered notice. When the matter was called on 14.02.2011, the contesting respondents sought further time for filing counters. The Wakf Tribunal granted time but ordered to maintain status quo till further orders. Aggrieved by the order declining to remove the status quo order, revisions were filed, and this Court dismissed the revisions, but directed the Wakf Tribunal to take up the I.A., and dispose of the same on merits.

During the enquiry, the Dargah marked Exs.P.1 to P.24 and the petitioner herein alone marked Ex.R.1. Though respondents 2, 6 to 11 and 13 to 15 were represented by counsel, no evidence was produced on their behalf. Besides pleading prima facie case, the Dargah – supported by Wakf Board – argued for ad interim injunction on the plea that the alienation/transfer of Manikonda lands by any of the allottees would multiply litigation. On their part, contesting respondents therein including the petitioner denied the ownership of the Wakf Board, questioned the maintainability of the suit and pressed into service the principle of res judicata based on the order dated 26.10.2007 of the Division Bench of this Court which was marked as Ex.P.19. On considering the relevant documents, the Wakf Tribunal while rejecting the submissions of the contesting respondents, restrained all of them especially the petitioner herein from alienating/parting the land in their possession till disposal of the suit. This Order is assailed only by respondent 5 in I.A.No.24 of 2011 (petitioner herein), respondent 12 (petitioner in C.R.P.No.2304 of 2011) and respondent 15 (petitioner in C.R.P.No.1444 of 2011).

Submissions in brief

Mr.Soli J. Sorabjee, learned senior counsel for the petitioner would submit that when the Government allotted land to APIIC, and when they in turn allotted the land after international bidding to the petitioner, no part of subject lands was notified as the wakf land of the Dargah and that the Wakf Board has no power to issue errata to include these lands in the wakf. He would further submit that the errata was not published in accordance with the provisions of the Wakf Act and even if it is so, it is effective from the date of its publication and it cannot be given effect from the date anterior to publication. He would next argue that in the writ petition filed by another person interested, the Division Bench reversed the learned single Judge who has passed order injuncting construction; the Special Leave Petition against the order of the Division Bench having been dismissed, the factors in relation to balance of convenience, which weighed with the High Court ought to have been applied by the Wakf Tribunal. According to senior counsel, when there are no changed circumstances when the Division Bench permitted construction, the order of the High Court could not have been ignored. Lastly, he would submit that the petitioner availed loans to the tune of Rs.1200 crores from the consortium of eight schedule banks, the construction reached the stage of delivering possession to the resident and non-resident buyers and if the petitioner is restrained from alienating the property, it would result in hardship besides causing significant loss to the State exchequer. He would also point out that in lieu of an injunction, Wakf Board can always be compensated in terms of money after final adjudication of the suits.

Sri D.Prakash Reddy, senior counsel for petitioner in C.R.P.No.1444 of 2011 would submit that his client M/s.Phoenix Living Space Private Limited is alleged to have occupied plaint ‘J’ Schedule property (Acs.25.00 in survey Nos.203 (part) and 266 (part)); the land in survey No.266 was deleted from Manikonda village and merged in Nanakramguda village with re-assigned survey Nos.4 to 49; his client entered into a Development Agreement cum General Power of Attorney in respect of land admeasuring Acs.4.48 in survey Nos.27/1 to 27/4 with three owners and that while passing the impugned order the Wakf Tribunal did not advert to or discuss the issue in proper perspective.

Mr.M.V.Suresh Kumar, counsel for the Dargah and Mr.S.R.Mahajir, counsel for the Wakf Board made the following submissions. Manikonda lands are the wakf lands as evidenced by Exs.P.9, P.10, P.1 and P.4. The Government also admitted this in Exs.P.12 to P.14. Unless and until, the jurisdictional Court declares otherwise, by reason of Ex.P.1 read with P.4 ex facie the lands are wakf lands of the Dargah and therefore, the Government could not have alienated the land to APIIC or the latter could not have sold the land to the petitioner or the contesting respondents. If the petitioner is allowed to alienate the property, it would result in multiplicity of proceedings. Further, the land was allotted to the petitioner only for the purpose of development of Information Technology (IT) Park in furtherance of the Information and Communication Technology Policy 2005-2010 of the Government; the construction of multiple residential units is illegal and therefore, balance of convenience favours injuncting alienations. The order of the Division Bench, Ex.P.19, does not indicate that the petitioner was permitted to alienate the property to third parties.

Point for consideration

The scope of a revision petition under the proviso to sub-section (9) of Section 83 of the Wakf Act is to examine the correctness, legality or propriety of order passed by the Wakf Tribunal in relation to a dispute or other matter. It is not appellate jurisdiction stricto sensu nor original proceeding. If all the relevant aspects of law and facts are considered by the Wakf Tribunal, no exception can be taken thereto. Even if two views are possible from the evidence on record, the High Court may not interfere with the order of the Wakf Tribunal, unless it is ex facie relevant aspects or gave importance to irrelevant factors.

The point for consideration whether the impugned order suffers from any illegality or impropriety, can be dealt with reference to the three distinct submissions made by the petitioners. Before doing so, we feel, that a short odyssey into applicable principles is necessary.

Common Law Principles

A judicial remedy for redressal of civil legal injury is either declaration, specific performance, injunction or award of specified amount. Injunctions are non-monetary remedies in rem. They are available at the stage of pre-trial, pendente lite and post-trial. The pre-trial and pendente lite injunctions last till the conclusion of the trial and final Judgment, requiring the defendant to do or not to do something during the pendency of the trial. An interlocutory injunction is intended to protect the right of the plaintiff till uncertainty is resolved. They are ordinarily awarded quia timet where no injury as such resulted but there is a threat of legal injury. Injunctions awarded quia timet are very effective in immovable property disputes when the defendants plead possession of the subject matter or is likely to change the character of the property or bring in third party interests that defeat the rights of the plaintiff.

The Court granting interlocutory injunction is required to apply three tests, namely, prima facie test, balance of convenience test and irreparable injury test. If the plaintiff has an arguable case and bring in legal evidence enough to establish a fact unless refuted would have a prima facie case. The weakness in the case set up by the plaintiff is also relevant in applying the test. But it is always not necessary for the plaintiff to show that he is definitely going to succeed in the suit. The comparative mischief or inconvenience due to withholding of injunction is often referred to as balance of convenience. If the plaintiff is able to show that the denial of injunction would aggravate the mischief intended by the defendant and causes greater harm than the one the defendant would suffer, the Court can infer the balance of convenience. It is also essential for the plaintiff to show that an injunction is necessary to protect him from substantial injury which might not be adequately compensated by the award of damages or by ordering restitution subsequently at the end of trial.

The quintessence of common law of interlocutory injunctions as summed up by the House of Lords in American Cyanamid Co v Ethicon (1975) 1 All ER 504 (HL), is as follows.

When an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff’s legal right is made on contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesis the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction but since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial, but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiffs undertaking in damages if the uncertainly were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where the balance of convenience lies.

The view of House of Lords that injunction can be denied by adequately compensating the plaintiff, however, has been diluted by subsequent decisions of English Courts, which substantially restored the practice of not denying the interlocutory injunction to the plaintiff satisfying the triple test (paragraphs 19.191 to 19.195 – Volume II ‘English Private Law’ edited by Professor Peter Birks, Oxford University Press, 2000).

Statutory Principles

The civil judicial process in India is; by and large - regulated by the CPC. All the cases, the cognizance of which is not specifically barred are within the jurisdiction of civil Courts. The interlocutory redressal during pendency of the main suit is taken care of by Part III (Incidental Proceedings) consisting of Sections 75 to 78 and Part IV (Supplemental Proceedings) consisting of Sections 94 and 95. In addition, Order XXXVIII (Arrest and Attachment before Judgment), Order XXXIX (Temporary Injunctions and Interlocutory Orders) and Order XL (Appointment of Receivers) contain the procedure for effective exercise of incidental and supplemental powers. Section 94(a) to (d) vests all powers in the civil Courts ‘to prevent the ends of justice from being defeated’ during the pendency of the suit. Section 95 is intended to prevent abuse of power. It enables the Court to order arrest of a person, who obtains a temporary injunction on frivolous grounds. Further the Court passing an order of injunction has also power to enforce its orders by coercive methods, a reference to which is not required here.

In addition to CPC, substantive provisions of the Specific Relief Act, 1963 deal with the preventive relief and injunctions. Preventive relief is granted at the discretion of the Court by injunction, which may be temporary or perpetual. As per Section 36 thereof, temporary injunctions may be granted at any stage of the suit. Section 37(2) speaks of perpetual injunctions which can only be granted by decree whereunder the defendant is perpetually enjoined from the assertion of right or from the commission of an act, which would be adverse to plaintiff’s rights. Section 37(1) lays down that temporary injunction can be granted at any stage of the suit and shall continue until further orders of the Court. Sections 38 and 39 enumerate the conditions under which perpetual injunction and mandatory injunction respectively can be granted and Section 40 speaks of entitlement of the plaintiff to claim damages in addition to or in substitution for injunction. Thus, the relief of perpetual injunction and temporary injunction as preventive relief are treated as specific relief and the grant of temporary injunctions is regulated by Order XXXIX of CPC. Rule 1 of Order XXXIX of CPC indicates cases in which temporary injunction may be granted and Rule 2 thereof deals with injunction to restraining repetition or continuation of breach of contract or other injury of any kind.

Case Law

There is voluminous case law on the subject. We would, however, refer to a Judgment of this Court and two decisions of Supreme Court. In S.Radhakrishna Murthy v K.Narayanadas AIR 1982 AP 384, a Division Bench of this Court, after analyzing Indian and English decisions held as under.

What emerges from the above conspectus is that the grant of interlocutory injunction is a discretionary remedy and in the exercise of judicial discretion, in granting or refusing to grant, the court will take into reckoning the following as guidelines: (1) Whether the persons seeking temporary injunction has made out a prima facie case. This is sine qua non. (2) Whether the balance of convenience is in his favour that is whether it could cause greater inconvenience to him if the injunction is not granted than the inconvenience which the other side would be put to if the injunction is granted. As to that the governing principle is whether the party seeking injunction could be adequately compensated by awarding damages and the defendant would be in a financial position to pay them. (3) Whether the person seeking temporary injunction would suffer irreparable injury. It is, however, not necessary that all the three conditions must obtain. “With the first condition as sine qua non, at least two conditions should be satisfied by the petitioner conjunctively and a mere proof of one of the three conditions does not entitle a person to obtain temporary injunction.

In Dalpat Kumar v Prahlad Singh (1992) 1 SCC 719, the Supreme Court ruled that under Order XXXIX Rule 1 of CPC, the Court is, “primarily concerned with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court, on exercise of the power of granting ad interim injunction, is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court’s interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensure before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it”.

Further, while reiterating that the burden to demonstrate ‘prima facie case’ by evidence aliunde by affidavit or otherwise is on the plaintiff’, the apex Court further held as under.

The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.

(emphasis supplied)

In Shiv Kumar Chadha v Municipal Corporation of Delhi (1993) 3 SCC 161, the principles were reiterated, thus.

It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles – ex debito justitiae. Before any such order is passed the Court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him.

The Wakf Tribunal has the same powers of the civil Court under CPC while trying a suit or executing a decree or order (sub-section (5) of Section 83). In the absence of any rules referable to Section 86(6) prescribing the procedure to be followed by the Wakf Tribunal, all the principles for grant of interlocutory injunctions are equally applicable even in an application or suit filed before the Wakf Tribunal. Now we will consider the three issues addressed by the counsel.

Prima faciecase

All the wakfs created before or after commencement of it are governed by the Wakf Act. Section 2(r) contains ‘means as well as inclusive’ definition of the wakf. Any dedication of movable or immovable property for pious, religious or charitable purposes shall be wakf. A property by user is also a wakf. Both the Acts (1954 and 1995) contain similar provisions for the survey and notifying the wakfs. While considering whether any property is wakf, one can visualise three distinct categories. These are the wakfs which were published by the Wakf Board under 1954 Act, those published after coming into force of 1995 Act and those wakfs which are yet to be surveyed and published. This is not to suggest that those wakfs, which do not fall in first two categories cease to be wakfs or their properties lose the character of being wakf properties. In Muslim law, the wakf property always remains the same notwithstanding anything or anybody claiming or disputing the nature of the property. If the property is notified under 1954 Act or 1995 Act as wakf property, it is conclusive evidence of being so unless and until it is declared otherwise by a Court or statutory Tribunal, in accordance with the provisions of the Act.

The Dargah marked the Gazette Notification dated 09.02.1989 as Ex.P.1 and the errata Notification dated 06.04.2006 as Ex.P.4. Under Ex.P.1 issued under 1954 Act, the Wakf Board notified the land and structures in survey Nos.262, 261 and 260/1 as the wakf known as Dargah Hazrath Hussain Shah Wali, Hyderabad. Under Ex.P.4, an errata was issued to Ex.P.1, notifying Acs.1,654.32 guntas in survey Nos.196 to 229, 231 to 237, 240, 241, 243, 244, 246 to 252, 254, 256 to 260, 262 to 266 of Manikonda village as wakf property duly modifying the entries in columns 10, 11 and 12 of Ex.P.1. Unless these two notifications are declared invalid, prima facie the Manikonda lands are wakf properties.

The next group of documents are Exs.P.5, P.9 and P.10. Ex.P.5 is a Muntakhab Muntakhib (in Arabic) an abstract of the documents, in the older survey records system being a list of names, with the numbers of the fields held by each. (p.3102, Advanced Law Lexicon by P.Ramanatha Aiyar, 3rd edn., Reprint 2007).

Section 2(c) of Andhra Pradesh (Telangana Area) Atiyat Enquiries Act, 1952 defines “Muntakhabs and Vasikas” as documents issued by competent authorities as a result of Inam or succession enquiries held under the Dastoor-ul-Amal Inams or other Government Orders on the subject and issued by way of continuance or confirmation of Atiyat grants. under which the land was recognised as mashrut-ul-khidmat in favour of wakf. Ex.P.9 is the order dated 31.05.1957 of Nazim-e-Atiyat in File No.2/56. While deciding the succession dispute among the heirs of service inamdar, a finding was recorded that Manikonda lands are the wakf property of the Dargah. This was subject matter of writ petition before this Court in W.P.No.666 of 1959. By an order dated 14.12.1961 (Ex.P.10), this Court held Guntupalli and Manikonda villages were, “granted as conditional grants in favour of the Dargah” and accordingly confirmed the order of the Nazim-e-Atiyat.

The other three important documents pressed into service in support of prima facie case before the Wakf Tribunal also requires to be referred to. Ex.P.12 is Memo No.8239/wakf-III/A2/2006-4, dated 25.01.2007 issued by the Government of A.P., in Minorities Welfare (Wakf-III) Department. After referring to the discussion that took place in the meeting convened by the A.P.Legislative Committee on Welfare of Minorities to review the status and action required in respect of six wakf properties, the CEO of the Wakf Board was directed to take immediate action to put the boards and paint on the rocks wherever available that the property belongs to Wakf Board warning trespassers with prosecution. Among others, Dargah Hazrath Hussain Shah Wali, Manikonda, is also mentioned therein specifically referring to Exs.P.9 and P.10. Exs.P.13 is a DO letter from the Principal Secretary in Minorities Welfare Department addressed to the Chief Commissioner of Land Administration and Ex.P.14 is another such DO letter to the Principal Secretary to Revenue Department. In both these letters, it was emphasised that Manikonda lands are Dargah property, and officials were advised to take all necessary steps not to permit any constructions; and to take steps to see that the land allotted to third parties is not utilised. Both these letters also refer to Exs.P.4, P.9 and P.10.

The statutory notifications (Exs.P.1 and P.4.), the three documents prior to Ex.P.4, (Exs.P.5, P.9 and P.10), and the three Government documents immediately after Ex.P.4 (Exs.P.12, P.13 and P.14) would clinch the prima facie case of the Dargah (the plaintiff) in O.S.No.7 of 2011. Indeed, in the interlocutory order, dated 20.09.2007, in W.P.M.P.No.21993 of 2007 in W.P.No.17192 of 2007, which was marked as Ex.P.18, the learned single Judge of this Court also referred to the same documents as above and came to the following conclusion.

As per the scheme of the Wakf Act and as per the Judgment of the Apex Court in AIR 1998 Supreme Court, page No.972, it cannot be said that the said properties are not wakf properties and that they are the government properties. Once the property has been notified under Section 5(2) of the Wakf Act based on the report submitted by the Survey Commissioner of Wakf under Section 4(3) of the Wakf Act, the notification is final and conclusive under Section 6(4) of the Act unless it is modified by the Wakf Tribunal under Section 6(1) of the Act. Therefore, I am of the prima facie opinion that the said property belongs to Almighty god and the God alone is the owner of the said property, but not the Government.

The order of the learned single Judge, Ex.P.18, was subject matter of appeal in Ex.P.19, which is the order of the Division Bench dated, 26.10.2007, in W.A.Nos.796 of 2007 etc. Indeed, the said appeal was filed by the petitioner in the C.R.P.No.1384 of 2011. The Division Bench affirmed the above finding observing as under.

A reading of the order under challenge shows that the learned single Judge made a detailed analysis of the factual matrix of the case and felt convinced that Acs.1654.32 gts of land specified in Gazette Notification dated 6.4.2006 constitute wakf property; that the entries contained in the notification are final and conclusive unless the same are modified by the Wakf Tribunal; that in view of order dated 31.5.1957 passed by Nazim E Atiyat and order dated 14.12.1961 passed by the learned single Judge in Writ Petition No.666 of 1959, the land has to be treated as wakf attached to the Dargah and the State Government does not have any right to intermeddle with it; that letter dated 2.5.2007 written by District Collector, Ranga Reddy and D.O. letter dated 13.9.2007 are inconsequential; that the District Collector has to function to assist the Wakf Board as per the directions of the Chief Executive Officer and he does not have the power or authority to nullify the earlier orders, notifications or to act against the interest of the wakf properties. … … Since the writ petition filed by respondent No.1 questioning the alienation of land or the Corporation to respondent Nos.9 to 15 has been admitted, it is reasonable to presume that he succeeded in making out a prima facie case. Therefore, the conclusion recorded by the learned single Judge on the issue of existence of prima facie case cannot be termed as erroneous per se.

(emphasis supplied)

The finding of prima facie case in favour of Dargah by the Wakf Tribunal, therefore, does not warrant any interference. The senior counsel Mr.Soli J.Sorabjee would urge that the Wakf Board could not have issued errata and that such errata has only the effect from the date of its publication. We are not impressed with this. A plain reading of Sections 4 and 5 would show that the publication in the Official Gazette of the list of wakfs based on the report of the Survey Commissioner under Section 4(3) need not be a one time affair. The same report of the Survey Commissioner could be the basis for number of notifications under Section 5(2) and even in relation to one wakf, there could be different notifications. This view derives further support from Section 40, which empowers the Wakf Board to make enquiries on its own and register the wakf property.

What is the effect of Ex.P.4, errata notification? Does it relate back to the date of Ex.P.1, the original notification or from the date of publication of Ex.P.4? It is settled law that an errata published always dates back to the date of initial publication. In State of Tamil Nadu v Mahalakshmi Ammal (1996) 7 SCC 269, the following observations are made.

It is true that the Government having realised that the lands were initially notified to be acquired but did not cover the survey numbers being situated in the adjacent villages, the errata notification was published and included to lands in Surveys Nos. 2/5, 2/11 and 2/12. Once errata was published, it dates back to the date of initial Section 4(1) notification, namely, 26-6-1978. It cannot be considered to be a fresh notification issued under Section 4(1). It is not in dispute that the respondents, in fact, filed their objections to the notice issued under Section 5-A and Rule 3 of the rules made by the State Government.

(emphasis supplied)

In State of A.P., v Twin City Jewellers Association (2005) 13 SCC 552, the Government of A.P. issued notification vide G.O.Ms.No.353, dated 19.05.1995 reducing the rate of tax on jewellery from 4% to 2%. About two years thereafter, another order being G.O.Ms.No.303, dated 15.04.1997 was issued levying sales tax at 3% in respect of sale of loose precious stones other than pearls. An errata was issued to this notification on 04.05.1998 to the effect that tax leviable in respect of sales of articles of jewellery made of bullion or specie or both including precious stone shall be at reduced rate of 3%. The challenge to the said errata as being prospective was successful before the High Court. The Supreme Court reversed observing as under.

It is settled law that once publication in the Official Gazette takes place, it is deemed to be known to all. Ignorance of law can be no excuse. Once the GO was published, from the date it was published, it became effective. … …. All that the errata, issued on 4-5-1998, does is reduce the rate of tax from 4% to 3%. The High Court has therefore also erred in concluding that the rate of tax has been increased. The whole judgment proceeds on the basis that the rate of tax has been increased when in fact it has been reduced. … … We are unable to accept the submission that as GO No. 304 is an errata, it necessarily means that GO No. 303 had never come into existence.The word errata, in our view, implies that there was something in existence which is being corrected. The fact that this was an errata itself showed that there was something in existence which was being corrected.

(emphasis supplied)

Hukam Chand v Union of India (1972) 2 SCC 601 = AIR 1972 SC 2427is a case involving the question as to whether in exercise of powers conferred by Section 40 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, the Central Government could retrospectively amend Rule 49 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1995. It was contended that Section 40 does not expressly confer power on the Central Government to make Rules with retrospective effect. Accepting the same, a Division Bench of the Supreme Court held.

As it is Section 40 of the Act which empowers the Central Government to make rules, the rules would have to conform to that section. The extent and amplitude of the rule-making power would depend upon and be governed by the language of the section. If a particular rule were not to fall within the ambit and purview of the section, the Central Government in such an event would have no power to make that rule. Likewise, if there was nothing in the language of Section 40 to empower the Central Government either expressly or by necessary implication, to make a rule retroactively, the Central Government would be acting in excess of its power if it gave retrospective effect to any rule. The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled (see Craies on Statute Law, p. 297, Sixth Edn.).

The decision in Hukam Chand does not deal with the effect of errata under original publication and we are not persuaded with the submission of the senior counsel.

Balance of Convenience and Irreparable Injury

There would be some amount of overlapping in dealing with these aspects. Hence, it is convenient to consider them together. The Court considering an application for pre-trial injunction has to apply the triple tests. The proof of prima facie case is sine qua non and the plaintiff must prove the other two conditions comprehensively. That is to say, the Court must be shown that the comparative mischief, inconvenience and resultant injury to plaintiff outweighs that of the defendants, if any. It is then for the defendant to prove the factors to deny interlocutory injunction (Dalpat Kumar). Though Specific Relief Act makes palpable distinction between interlocutory injunctions and permanent injunctions, the same principles and restrictions apply to both. Section 41 of the Specific Relief Act bars the grant of injunction in ten situations. This cannot be ignored by the Court even while considering grant of pre-trial injunction. If the plaintiff demonstrates the prima facie case, the balance of convenience and irreparable injury, and the grant of such injunction is not barred under Section 41 of the Specific Relief Act, the Court may exercise discretion to grant the relief. But, while doing so, it is always safe to consider the comparative mischief and hardship that might occasion to the defendant. Even if there is more hardship to the defendant, the Court cannot ignore the nature of the property and the nature of holding by the plaintiff. If the subject matter of the suit is held by the plaintiff in trust to subserve larger public good, the hardship to the defendant if any cannot outweigh such public interest.

The law of wakfs originates in the rule laid down by the Prophet and means “tying up of the property in the ownership of God and Almighty and devotion of the profits for the benefit of humanbeings” (Vidya Varuthi v Baluswami AIR 1922 PC 123). When a founder dedicates the property for a wakf, the ownership of the founder is completely extinguished. When once it is declared that a particular property is wakf or any such expression is used implying wakf or the document shows that there is dedication for a pious or charitable, the right of the person is extinguished and the ownership is transferred to the Almighty. Though Mutawalli is the Administrator, Governor, Superintendent or curator of the wakf property, he has no right in the property belonging to the wakf. The property is not vested in Mutawalli and he is not a trustee in the technical meaning of the term (Vidya Varuthi). The dedication need not specifically be in favour of a place of worship, kankah, Dargah, cemetery etc. It is enough if the dedication is made for the purpose recognised by Muslim law as pious, charitable or religious (Sayyed Ali v A.P.Wakf Board, Hyderabad (1998) 2 SCC 642). An overall view of the evidence on record is to be taken to establish that there is a permanent dedication of the property as a wakf (Sayyed Ali). Service inam granted to individuals burdened with service for the purposes which are pious, religious or charitable, subject to proving other factors, answers description of all the ingredients of wakf. When once the property is held to be wakf, it always retains such character and the grant of patta to service inamdars or occupants does not in any manner change the character of the wakf (R.Doraswamy Reddy v Board of Wakf 1978 (2) APLJ 399andSayyed Ali).

The petitioner would contend that after the order of the Division Bench (Ex.P.19) in Acs.100.00 of land allotted to them, the work is in the advanced stage of completion or already completed. Additional affidavit is filed during the oral arguments pointing out the details of fully/partially completed development as follows: (i) On Acs.27.00 of SEZ land, 60,000 sft., of IT space is completed and is in operation with several IT companies and foundation works for construction of IT towers are completed and further work is in progress; (ii) 20 floors of IT tower for accommodating 4,000 professionals on Acs.6.00 of land is completed; (iii) foundation work is in progress for providing ITES services on Acs.27.00 of land; (iv) six residential towers comprising 950 units are completed and work for construction of six more such towers with 850 units is in progress on Acs.24.00 of land; (v) the construction of residential houses is in progress and Acs.10.00 of internal roads have been completed.

The additional affidavit points out that an amount of Rs.2,442.17 crores have been invested; a consortium of eleven Banks arranged total loan of Rs.1,267 crores; in addition to equity amount of Rs.450 crores spent by the petitioner, an amount of Rs.193 crores is payable for 2011-12 to seven of the lending banks. The senior counsel would contend that the prohibitory order issued by the Wakf Tribunal would cause irreparable injury to the petitioner. He emphasised the following.

Effect of Ex.P.19

The first aspect centres round Ex.P.19. It is argued that the balance of convenience was found in favour of the petitioner in Ex.P.19. Before the Division Bench, the Chief Executive Officer of the Wakf Board claimed that the Wakf Board is entitled to the amount collected from the third parties, and the Court can pass appropriate orders compensating the Board. It was also held therein that Mr.H.A.Rahman, who filed W.P.No.17192 of 2002 would not suffer any injury and on the other hand, “if injunction order is not vacated, the Lanco Hills will have to stop the ongoing projects, some of which are at the stage of completion, and that stopping the construction would result in depriving the thousands of workers and other employees of their livelihood who are engaging in the construction and other activities undertaken by the Lanco Hills”.

Here, we may passingly mention that in I.A.No.521 of 2007 in O.S.No.99 of 2007, the Wakf Tribunal passed an order on 04.10.2007 restraining the petitioner from alienating any part of the land to third parties until 18.10.2007. On 01.10.2007, the said order was extended till 19.11.2007. When the matter was considered on that day, Ex.P.19 was brought to the notice of the Wakf Tribunal. Before us, it is submitted that in view of the orders in Ex.P.19 permitting construction, any restraint from alienating the constructed buildings/space would be contrary to the High Court order. We are afraid we are not able to persuade ourselves with this submission. Ex.P.18 is order, dated 20.09.2007 passed by the learned single Judge in W.P.No.17192 of 2007 filed by Mr.H.A.Rahman. He prayed for a declaration that the action of the Government in allotting different extents of Manikonda lands in favour of business enterprises as illegal and for a consequential quashing of the allotments. In the miscellaneous application, he only prayed for an injunction restraining the allottees from making any construction. By an elaborate order, the learned single Judge thought it fit to direct M/s.Emmar Properties and Lanco Hills (respondent No.4 and the petitioner in C.R.P.No.1384 of 2011) from making any construction in an extent of Acs.400.00 in survey No.203/1 and Acs.108.10 guntas in survey No.201 respectively. This order was set aside by the Division Bench in Ex.P.19. There is no dispute that S.L.P., against Ex.P.19 was dismissed on 10.01.2008 (Ex.R.1). The scope of the order of the learned single Judge being restricted to the land allotted to the petitioner and fourth respondent, it is not possible to accept the submission that the order of the Division Bench was comprehensive to cover the entire extent of land nor is it possible to accept the submission that this Court also dealt with the issue of permitting the allottees to make constructions as well as permit them to alienate the property. Indeed, in Ex.P.19, the Division Bench directed the writ petition itself to be listed for hearing on 03.12.2007. This would lead to an inference that while expediting the hearing of the case, the Division Bench only felt that permitting the construction would not cause any injury to the person interested.

In these revisions, the issue is whether the petitioner should be permitted to alienate the constructed buildings in favour of third parties. It was not an even incidental issue before the Court, when Ex.P.19 was passed. The Wakf Tribunal has considered this aspect and came to the conclusion that Ex.P.19 does not operate as res judicata. We do not find any sustainable reasons to deviate from such finding. That there is prima facie case to hold that the land is a wakf land is also supported by Ex.P.19. In such background, if the petitioner is allowed to alienate the land as rightly observed by the Wakf Tribunal, it would certainly multiply litigation unendingly as third party interests would certainly come into picture. Be it noted that as per the affidavit filed during arguments, Lanco Hills proposes to sell 1800 (see next para) residential flats to third parties. Any sale would be certainly hit by doctrine of lis pendens and void under Section 52 of the Transfer of Property Act, 1882. Further the third parties might also raise loans from the Banks and the public interest would further suffer.

The attention of this Court is invited to Ex.P.20, dated 01.01.2011 which is an advertisement issued by the petitioner offering “to own ready-to-move-in Exquisite Apartments” for sale. Be it recalled that as per petitioner’s additional affidavit, 950 such apartments are completed and construction of 850 apartments are in progress. There is no dispute that the petitioner was allotted land for developing IT park. It is quite incomprehensible as to how the petitioner was permitted to construct residential apartments/flats in the land allotted to them contravening the terms of allotment. When the Division Bench in Ex.P.19 permitted the construction of only IT park, Ex.P.20 advertisement would show that the Division Bench order was seemingly flouted by constructing and offering the residential apartments to the public.

Thus, prima facie petitioner after getting favourable order from this Court only for construction on the disputed land deviated from the terms of allotment and in breach of the Court order, made additional unauthorised residential apartments and invited applications from the prospective buyers. When there is a deviation of the order of the Division Bench, the petitioner’s construction of residential apartments is certainly an activity which cannot be legitimised by this Court nor can it be perpetuated by allowing alienations and transfers in favour of innocent third parties. The submission of the senior counsel that the alienations would be made only for the purpose of IT business enterprises as per the terms of allotment and as per the Rules/regulations does not impress us nor it shifts balance of convenience in favour of the petitioner.

Here it is apt to excerpt the elucidation of ‘balance of convenience’ from Halsbury’s Laws of England (Fourth Edition Reissue, 1991, Volume 24).

856. Balance of convenience.Unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.

In order to determine whether the balance of convenience lies the court must weigh two matters. The first is to protect the plaintiff against injury by violation of his rights for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The second matter is the defendant’s need to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial.

Where there is a clear breach the question of the balance of convenience does not arise. Where the grant or refusal of an interlocutory injunction will have the practical effect of putting an end to the action the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.

(emphasis supplied)

In such circumstances, in this case, we are afraid we cannot assume balance of convenience in favour of the petitioner. If the denial of injunction to the plaintiff has an effect of putting the defendants in an advantageous position, the Court, in our considered opinion, ought to issue an injunction in favour of plaintiff. In this regard, we may extract the following observations of Lord Jessel from Aynsley v Glover (L.R. 18 Eq. 544) as quoted in Nelson’s Law of Injunctions (6th edn., 2010, I, pp.736-737).

At all events, this being an interlocutory application let me continue my building, and I will undertake to pull down if the Court shall so think fit. That is a very specious argument to address to the Court, but one must have regard to the effect of allowing such a proceeding. Supposing a defendant erects a building at great cost, when he comes to the hearing he will say to this Court. ‘Compare the injury to me, in pulling down the building, with the injury to the plaintiff in allowing the building to remain’. Ought or ought not the Court to give weight to such a representation? I think upon this point the observations of Vice Chancellor Kindersley, in the case of the Curriers Co v Corbett (2 Dr. and Smt. 355, at p.360) are very important. The Vice Chancellor says: ‘If the defendants’ buildings had not been completed, there would have been ground for interference by injunction; but as they have been completed, the question is, whether the Court ought to or would order the pulling down of the buildings, or give compensation in damages. The defendant’s new buildings are of considerable magnitude and importance, while the two houses of the plaintiff’s are comparatively of small value and importance; and it has been decided that in such a case the Court will not as a matter course order the defendant to pull down his new buildings, but will give to the party injured by the erection of those buildings compensation in damages. It appears to me that this is a precisely one of such cases.’ Consequently the learned Vice Chancellor considered that, the buildings being erected, the comparative values of the defendants’ buildings and the plaintiff’s were sufficient to induce him to refrain from granting an injunction in a case where, if the buildings had not been erected, he would have granted the injunction. If that is so, and if those considerations are to weigh with the Court upon the question of damages or injunction, I ought not to allow the defendant to proceed with his buildings, which will put him in such an advantageous position as regard the plaintiff’s when the case comes to a hearing.

There is no dispute that the petitioner statedly completed or partly completed the construction of IT space, commercial space as well as 950 residential apartments, although, the land was allotted for developing an IT park. If the impugned injunction granted by Wakf Tribunal is removed, it has an effect of pushing the petitioner to an advantageous position and there is no guarantee that they and their thousands of alienees or tranferees would not claim equities at the time of final hearing. The Wakf Board acts in larger public interest of protecting all the wakf properties. If a person who comes into possession of wakf lands in a doubtful manner is allowed to alienate the same and take shelter behind equity, it would have debilitating effect on larger public interest.

Effect of borrowed funds

The petitioner statedly availed enormous amount of loans from a consortium of about dozen Banks besides investing its equity in the project. The senior counsel would submit that the effect of not permitting alienation to prospective buyers would be irreparable as the larger public interest – repayment of loans to the Bank would be hampered. According to him, it will have long lasting adverse effect of discouraging the IT enterprises in setting up their business in the constructed space. We are afraid the possibility of something turning topsy turvey or leaving so called long lasting adverse effects cannot overweigh or eclipse the majesty of rule of law. Stakes, however, big, they might be, would not and cannot dilute the axiomatic principles in granting injunction. We may make reference to a case decided by Lord Denning M.R., in Bradbury v London Borough of Enfield1967) 3 All ER 434.

In Bradbury, the Court of Appeal dealt with an application for judicial review seeking an injunction restraining Borough Council from ceasing to maintain the grammar, technical and secondary schools. In 1965, it was decided to adopt a system of secondary education by introducing new system of comprehensive schools. Accordingly, a schools development plan was prepared in the jurisdiction of London Borough of Enfield. In regard to eight of the schools no public notice was given as required under Education Act, 1944. Ruth Bradbury and others, as ratepayers sought interlocutory injunction restraining the Council from implementing the proposals till they are approved by the Secretary of the State as per the law. The High Court of Judicature refused injunction while finding that the Council breached the provision of law. The Court of Appeal allowed the appeal injuncting the Council from proceeding with the development plan of changing into comprehensive schools. Before the Court of Appeal, it was inter-alia contended by the Council that injunction, if granted, would result in chaos, in view of arrangements having been made for the change over. Dealing with this, Lord Denning M.R. held—

“I come to the last point. Ought an injunction to be granted against the council? It has been suggested by the chief education officer that, if an injunction is granted, chaos will supervene. All the arrangements have been made for the next term, the teachers appointed to the new comprehensive schools, the pupils allotted their places and so forth. It would be next to impossible, he says, to reverse all these arrangements without complete chaos and damage to teachers, pupils and the public. I must say this: if a local authority does not fulfil the requirements of the law, this court will see that it does fulfil them. It will not listen readily to suggestions of “chaos”. The department of education and the council are subject to the rule of law and must comply with it, just like everyone else. Even if chaos should result, still the law must be obeyed; but I do not think that chaos will result. The evidence convinces me that the “chaos” is much over-stated…”

(emphasis supplied)

In B.Prabhakar Rao v State of Andhra Pradesh AIR 1986 SC 210, the argument of ‘calamitous consequences’ and ‘administrative chaos’ was repelled by the Supreme Court. The apex Court referred to Bradbury with approval and observed as follows –

“…. It would be a great injustice to deny justice to those who have suffered injustice most merely because it may cause inconvenience to the administration. We are governed by the Constitution and the constitutional rights have to be upheld. Surely the Constitution must take precedence over convenience and a judge may not turn a bureaucrat. We do not mean to suggest that creation of a chaotic state of administration is not a circumstance to be taken into account. It may be possible that in a given set of circumstances, portentous administrative complexity may itself justify a classification. But, there must be sufficient evidence of that – how the circumstances will lead to chaos…”                      (emphasis supplied)

When the Court exercises auxiliary jurisdiction to provide remedy of injunction, it has to be strict in exercising equity without ignoring the basic that “equity follows the law” (Halsbury’s Laws of England, Fourth Edition Reissue, 1991, Volume 16(2)). Thus, the business loss, the repayment of the bank loans, the colossal structures constructed are not much relevant if ultimately the Court comes to a conclusion that a larger public interest would be subverted by allowing a party to do something which prima facie was not authorised or was done in breach of Court order. Therefore, on this aspect, we are not able to countenance any of the submissions of the petitioner.

Monetary compensation

Injunction should be denied if the relief can be compensated in terms of money. It is an important principle, which has its own limitations and it is not always true that whenever there is an alternative relief to an injunction, the Court must deny the remedy to the plaintiff.

In W.P.No.17192 of 2007 filed by Mr.H.A.Rahman, the CEO of the Wakf Board filed counter affidavit supporting the writ petitioner. As already noticed vide Ex.P.18, order, the learned single Judge prohibited the construction on the disputed land. In Ex.P.19, the Division Bench reversed. One of the factors which weighed with the Division Bench is the following statement of the CEO in the counter affidavit.

If at all, the Government desires to utilise the property belongs to the Wakf institution, that they should take prior sanction from Board. Any Proceedings for purchase of any Wakf Land including the land of the subject institution should be by paying the requisite sale consideration. Therefore, the Board alone is entitled the amount which was collected by the Government from the 3rd parties towards sale consideration of lands which was already allotted to respondent No.6 and respondent Nos.9 to 15. As an interim measure, keeping in view of the interest of the property belong to the Wakf institution, this Hon’ble Court may direct the Government to transfer the said amount into the account of this respondent.

Relying on the above statement as well as the observations made by the Division Bench in Ex.P.19, the petitioner’s senior counsel would submit that when the Wakf Board itself came forward for an order directing the Government to transfer the amount realised by sale of land to private enterprises to the Board, an inference has to be drawn that the relief claimed by the Dargah and Wakf Board before the Wakf Tribunal can monetarily be compensated in lieu of injunction. We are afraid we cannot accept the submission.

The errata notification (Ex.P.4), whereunder Manikonda lands were attached to the Dargah is in force. It has not been suspended nor its legal effect is curtailed. The Dargah was not a party to the writ proceeding in which Exs.P.18 and P.19 were passed. As rightly contended by the counsel that Dargah and Wakf Board being in the position of a trustee when the wakf itself has no such authority to make a statement agreeing to part with the land, the CEO could not have done so. No material is placed before us to say that there was any valid resolution or authorisation by the Wakf Board advising its CEO to make a statement as above. Even otherwise, we are convinced that the said statement would not hold good for the purpose of these cases, for two reasons. First, the Division Bench while directing the construction to go on, thought it fit the matter itself can be disposed of expeditiously and directed to list the matters for hearing on 03.12.2007. It did not happen. Secondly, as we already concluded supra, the order in Ex.P.19 permitting construction by the petitioner cannot be read as also enabling them to alienate the property a portion of which is constructed contrary to the allotment letter, i.e., construction of residential flats which were offered for sale in Ex.P.20, advertisement.

In a given case, if the plaintiff has acquiesced in the defendant’s conduct and allowed the latter to incur expenditure, there could be plausible argument to infer ‘balance of convenience’ against the plaintiff. Acquiescence by the plaintiff, however, is not always a bar. If the plaintiff under a wrong assumption recognises some interest of the defendant in the subject matter or expecting an amicable arrangement with the defendant, does not offer resistance, the plea of acquiescence has to fail. The following statement of law in this regard is found in paragraph 860 of Halsbury’s Laws of England (Fourth Edition Reissue, 1991, Volume 24).

860. When acquiescence is no bar.Acquiescence is no bar to an injunction if it can be satisfactorily accounted for, as for example where the plaintiff has assumed that the defendant, having a right, would not use it so as to injure the plaintiff and his assumption is justifiable, or has acquiesced in what he has been led to consider was merely a temporary violation of his right, or has endeavoured to come to an amicable arrangement with the defendant, or where the defendant has falsely represented to the plaintiff that the injury complained of would not result from his operations, or has led the plaintiff to believe that the evil would be remedied. The plaintiff will not be deemed to have acquiesced in the claims of others unless he was fully cognisant of his right to dispute them, nor where he has assented to the act complained of under an erroneous opinion and view and in ignorance of the consequences. The fact that the plaintiff has acquiesced in a state of things while it produced little injury to him does not constitute such acquiescence as would debar him from obtaining an interlocutory injunction in the event of the injury being substantially increased.

(emphasis supplied)

Further more, Manikonda lands are claimed to be wakf properties of the Dargah. The Wakf Board is vested with the general superintendent of all wakfs in the State. The wakf property as such may not always vest in the Wakf Board. To prevent any acts of malfescence and misfeasance in relation to wakf property, the law regulates the use of wakf properties subject to general superintendence of Wakf Board. Therefore, it is very much doubtful whether the CEO of the Wakf Board could have made such a statement on behalf of the Dargah. The procedure for alienation of wakf property is provided in Section 51 of the Wakf Act, and the Wakf Board or CEO cannot agree to transfer wakf property de hors Section 51, which declares any alienation or transfer of wakf property without prior sanction of the Board as void. Even when the Wakf Board decides to alienate the wakf property, it can only be done after satisfying the conditionalities under Section 51(2), namely, such transaction is beneficial to the wakfs, in consistence with the objects of the wakf and consideration thereof is reasonable and adequate. Therefore, we are inclined to accept the submission of the Dargah and Wakf Board that the statement made by the CEO in the writ proceedings has no bearing on the question of ‘balance of convenience’ at the time of considering the issue of permitting the petitioner to alienate the property.

In C.R.P.No.1444 of 2011, the plea of the petitioner prima facie is well founded. The land in survey No.266 of Manikonda lands was deleted and was included in the Nacharam Revenue Records correlated to survey Nos.27/1, 27/2, 27/3 and 27/4. This was not adverted to by the Wakf Tribunal while passing a general order of injunction. As there is no serious dispute about this, we are of the considered opinion that the issue can be finally decided by the Wakf Tribunal in the suit. The petitioner, who entered into the development agreement with the land owners, may have to approach the Wakf Tribunal for necessary clarification in this regard, with reference to Section 52 of the Transfer of Property Act, 1882.

In the result, for the above reasons, C.R.P.Nos.4958, 5028 and 5314 of 2007 and 521, 1384 and 2304 of 2011 shall stand dismissed. C.R.P.No.1444 of 2011 shall stand disposed of, subject to the observations made hereinabove. There shall be no order as to costs.

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