Disposed

Mohd. Khader, v. The Hindustan Aeronautics Ltd.

Telangana HC4 Sept 2012WA/1090/2012

Case brief

AI extract

What is this about?

The High Court disposed of an appeal filed by the petitioner challenging a single judge order. The appeal had been filed against an order allowing the petitioner restricted access to a Dargah after the first respondent, HAL, agreed to a compromise ensuring security.

What did the court decide?

No order allowed; the appeal dismissed. The court held that intercession is barred as a compromise between the petitioner and HAL regarding security and access was already settled.

Mohd. Khader, Vs The Hindustan… — Constitutional and Fundamental Rights | Telangana HC (2012)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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TUESDAY, THE FOURTH DAY OF SEPTEMBER TWO THOUSAND AND TWELVE

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PRESENT

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THE HON'BLE ACTING CHIEF JUSTICE PINAKI CHANDRA GHOSE AND

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THE HON'BLE MR. JUSTICE VILAS V. AFZULPURKAR

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WRIT APPEAL No.1090 of 2012

BETWEEN

Mohd. Khader.

…APPELLANT

AND

The Hindustan Aeronautics Limited, Hyderabad and three others.

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…RESPONDENTS

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Counsel for the Appellant: MR. NAZIR AHMED KHAN

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Counsel for the Respondents: MS. K. UMA DEVI – R1 MR. MIR MASOOD KHAN – R2 MR. PONNAM ASHOK GOUD – R3 (ASST. SOLICITOR GENERAL) GP FOR REVENUE – R4

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The Court made the following:

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JUDGMENT: (Per Hon’ble Sri Pinaki Chandra Ghose, the Acting Chief Justice)

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This appeal is directed against the order passed by the Hon’ble single Judge on 25.07.2012 in WP.No.27889 of 2010.

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2. The appellant/writ petitioner filed the writ petition praying as under: “…to issue a Writ of Mandamus or any other appropriate writ, order or directions calling for the records relating to order No.HAL/Hd/65/2010/347 dated 9-8-2010 on the file of the 1^st respondent herein and declare the same as illegal and contrary to law with consequential directions to the

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1^st respondent herein to permit the petitioner and his family members to perform daily services and annual “Urs” and religious rites Dargah Sharif Hazrath Ghaziuddin Masood Salar Ghazi, Mosque and ancestral tombs in Survey No.46 of Balangar Village and Mandal, located in the premises of the

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1^st respondent herein.”

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3. The facts of the case, briefly, are as follows:

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(a) The land in Sy.No.46 of Balanagar Village and Mandal along with some other lands was acquired by the Government of Andhra Pradesh in the year 1964 for the purpose of construction of factory for MIG Aeronautics and Electronics Township. The said acquired land was transferred by way of deed of conveyance dated 01.08.1989 to the Hindustan Aeronautics Limited (HAL) - first respondent. The factory was constructed and township, on the acquired land, was also set up by the respondents. The Dargah, aforementioned, is forming part and parcel of the said acquired land. The boundary wall was also constructed by the first respondent around the land conveyed to it under the said conveyance. It is the case of the writ petitioner that Dargah, tombs and graveyard of the ancestors are within the boundary walls put up by the first respondent. It is their case that the first respondent should permit the writ petitioner and his family members to perform annual “Urs” at Dargah.

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(b) On 01.07.2007, representation was made to the authorities, however, no reply was received. This caused the writ petitioner to move a writ petition, being W.P.No.2978 of 2007, seeking direction to the authorities to permit the petitioner and his family members to perform annual “Urs” at Dargah. On 21.07.2007, the writ petition was disposed of directing the first respondent to consider the representation and pass necessary orders

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thereon. Accordingly, the authorities considered the representation and rejected the same by order dated 09.08.2010 bearing No.HAL/HD/SD/65/2010/347.

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Being aggrieved by the said order, the writ petitioner filed the present writ petition, being W.P.No.27889 of 2010.

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4. The writ petitioner stated before the Court that the committee, which has decided the representation of the writ petitioner, has no power or authority to reject the said representation nor they have any right to manage the affairs of the Dargah. The averments in Para 9 of the writ petition, as quoted by the Hon’ble single Judge, may be quoted hereunder:

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“9. I state that again during the year 2008, I made a representation to the 2^nd respondent herein in August, 2008, requesting the 2^nd respondent to direct the 1^st respondent herein to accord permission to me and my family members to perform “Urs” at aforesaid Dargah on 30-8-2008. Thereupon the 2^nd respondent had directed the Inspector-Auditor, Wakfs, A.P.State Wakf Board, Chevella Division, Ranga Reddy District to enquire into the matter and submit his report. Thereupon, the said Inquiry Authority had submitted a report in August 2008 to the 2^nd respondent to address a letter to the Senior Manager of the 1^st respondent herein with a request to allow me to conduct annual “Urs” at aforesaid Darah on 30-82008. In the said report, the Inquiry Authority has clearly stated that the Managing Committee referred to by the 1^st respondent in its letter dated 7-9-2007 is a self-styled Committee. On the basis of said report, the 2^nd respondent had addressed a letter to the 1^st respondent requesting him to look into the matter and accord permission sought for by me. But the said letter did not evoke any response from the 1^st respondent. I submit that I again made a representation dated 15-7-2009 to the 2^nd respondent herein to direct the 1^st respondent to permit me and my family members to perform annual “urs” at aforesaid Dargah in the month of August, 2009. Thereupon, the 2^nd respondent had sent a letter dated 18-8-2009 to the 1^st respondent herein requesting to consider

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the matter and permit me and my family members to perform annual “urs” at the aforesaid Dargah. But the said letter also did not evoke any response from the 1^st respondent herein. I had also sent a notice dated 3-8-2009 through my Advocate to the 1^st respondent herein but the said notice also did not evoke any response from 1^st respondent herein. Thus I was prevented by the 1^st respondent herein from the last four years to perform annual “Urs” at Dargah and other religious rites at the tombs and graveyards along with my family members seriously hurting the religious sentiments and feelings”.

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5. Thereafter, the matter was heard out by the Court and the respondents filed their counter before the Court wherein it is stated that the first respondent has been established by the Central Government for the purpose of manufacturing various equipments and items to meet the defence requirements of the counter. It is, further, stated that the land was acquired under the Land Acquisition Act, 1894 and thereafter, conveyed and transferred in favour of the first respondent. It is stated that a committed was constituted by the first respondent consisting of employees, who are also the members of Muslim Welfare Association of HAL, which was recognized by the Andhra Pradesh Wakf Board in 2001 for performing rituals and religious activities connected with the Masjid including the Dargah.

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It is further stated that the said Dargah is located within the prohibited area of the first respondent and entry to outsiders is prohibited under Section 2(8) of the Official Secrets Act, 1923. According to them,

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the entry of general public in the area of establishment of the first respondent, if permitted, would jeopardize the safety of the establishment.

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6. The writ petitioner filed a reply affidavit, which has been dealt with by the learned single Judge. Though in the reply affidavit, the appellant/writ petitioner contradicted the said statements made by the first respondent in the counter affidavit, it has been stated that the first respondent has not put any restrictions. Therefore, there is no valid and

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justifiable reason for the first respondent in not permitting the writ petitioner as Mutawalli of Dargah and the members of the family to enter the premises of the first respondent to go to Dargah for rendering daily services and performing annual Urs. The writ petitioner relied upon a letter dated 23.04.1970 addressed by the first respondent to the second respondent that it had no objection for the visitors of Dargah coming through the township roads and in view of the said letter, first respondent, cannot turn round and say that the Mutawalli of the said Dargah has no right to perform Urs and daily services at Dargah. It is further stated that after expiry of one year period of the committee, which was constituted on 19.01.2003,

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no further committee has been constituted by the second respondent. It is further stated that the land covered by the Dargah was not acquired by the State Government and in fact, it was erroneously transferred to the first respondent along with acquired lands.

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7. From the facts it appears that on the earlier occasion, the Court passed the following directions vide para 4, as under:

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“4. On 17-11-2011, this Court suo motu impleaded the Union of India represented by its Secretary, Ministry of Defence-3^rd respondent and the State of A.P., represented by its Secretary, Minority Welfare Department as 4^th respondent and issued the following directions:-

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“ The respondents 1 to 4 shall convene a meeting after due notice to the petitioner and deliberate upon the fact situation and petitioner’s request for permitting him to discharge the duties as Mutawalli of the Wakf Institution located in Sy.No.46, without any manner compromising the security of HAL. The said exercise shall be completed within two (2) months from today and the report of the said meeting shall be filed before this Court by the learned Assistant Solicitor General representing the third respondent.”

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8. Pursuant to the aforesaid directions, a meeting was held by the Secretary to Government, Minorities Welfare Department, A.P., Secretariat, Hyderabad on 21.01.2012 and resolutions were passed. The said resolutions, which were passed in the meeting, state as follows:

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“ In the meeting, in compliance to the orders of the Hon’ble High Court of A.P., Dated 17.11.2011 passed in W.P.No.27889 of 2010, the following resolutions have been taken:

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1. The officials of Hindustan Aeronautics Limited (HAL) expressed their intention to file an Appeal before the Hon’ble High Court for vacation of the orders, Dated : 17.11.2011 passed in W.P.No.27889 of 2010;

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2. In the meanwhile, the officials of Hindustan Aeronautics Limited (HAL) have come to a compromise with Sri Mohd. Khader, Muthawallli of Dargah located in Sy.No.46, within HAL compound, Hyderabad and agreed to allow him into Dargah which is located within HAL compound, Hyderabad on every Thursday for performing rituals. It was also agreed to allow a group of members as mentioned by him on proper authorization by way of entry pass. In order to access the Dargah on Thursday he shall make advance application along with a photograph on Monday itself. At the time of Urs also he shall made advance application along with photograph of the persons who would accompany him for the Urs which will take place in the month of August. “

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9. In these circumstances, it appears that the Hon’ble single Judge was

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pleased to following the order, recorded as follows:

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“10. It is not in dispute that the estate of the 1^st respondent organization comprising of factory and township has been declared as prohibited area under G.O.Ms.No.121 dated 01-3-1969. Anyone, who intends to enter into the premises, has to obtain necessary permission from the Security Officer of the 1^st respondent organization. The possession of 28 guntas in Survey No.46 along with the Dargah situated therein has been delivered to the 1^st respondent organization under conveyance deed dated 01-8-1989. It can be said without any controversy that the Dargah is situated within the prohibited place. After execution of the conveyance deed, rituals and religious activities connected with the Dargah are being performed by the committee constituted by the muslim employees of the 1^st respondent organization. There seems to be no complaint by any of the muslim employees of the 1^st respondent organization with regard to maintenance of the Dargah by the committee. However, as the tombs of the ancestors of the petitioner are situated, he is to be allowed to have access to the tombs to offer prayers. A tentative arrangement has been made pending disposal of the writ petition permitting the petitioner to visit the Dargah, which is located within

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HAL compound of the 1^st respondent organization. The tentative arrangement appears to be quite reasonable and the same deserves to be made absolute.”

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11. Accordingly, the writ petition is allowed in part directing the 1^st respondent to allow the petitioner to have access to Dargah, which is located within the 1^st respondent-HAL compound on every Thursday for performing rituals. The 1^st respondent is also directed to allow a group of members as mentioned by him on proper authorization by way of entry pass. For having access to the Dargah on Thursday, the petitioner shall make an advance application on Monday itself. At the time of Urs also, he shall make an advance application along with photograph of the persons who would accompany him for the Urs, which will take place in the month of August, every year. Miscellaneous petitions, if any, shall stand disposed of. No costs.”

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10. Being aggrieved and dissatisfied with the order passed by the Hon’ble single Judge, this appeal has been filed by the appellant/writ petitioner. It appears from the facts that the position has already been clarified to the first respondent and further, it has been stated that by virtue of letter addressed in the year 1970 there cannot be any impediment on the part of the respondent authorities to allow the appellant/writ petitioner and his family members to perform daily rituals and religious activities and further to hold the annual Urs at the said Dargah without any intervention of the first respondent.

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It appears to us that the point, which has been tried to place before us on behalf of the appellant, is that the said authority has no right to refuse access to the Dargah by the appellant/writ petitioner.

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It appears from the minutes and the resolutions passed in the meeting, which has already been stated by us in the preceding para, that the officials of HAL have come to a compromise with Mohd. Khader, Mutawalli of Dargah located in Sy.No.46 within HAL compound, Hyderabad and agreed to allow the writ petitioner into the Dargah, which is located within said compound on every Thursday for performing rituals. It is further stated that on proper authorization by way of entry pass, they are agreeable to allow group of members as mentioned by the writ petitioner and allow access to the said Dargah on Thursday on making advance application on Monday along with a

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photograph. It is further stated that at the time of Urs also advance application shall be made along with the photographs of the persons, who would accompany the writ petitioner for the Urs at the Dargah in the month of August.

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11. In this situation, for the purpose of security, as it appears that the said proposition and acceptance has been made by the parties, which would be reflected from the said resolutions adopted in the joint meeting, in our opinion it would not be possible to interfere in the matter, at this stage, in any manner whatsoever. However, this order will not stand in the way of the appellant to apply before HAL to allow them to have access to the said Dargah subject to obtaining permission from the respondent authorities, as agreed between them on an earlier date.

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The writ appeal is accordingly disposed of. As a sequel, miscellaneous applications, if any, shall stand disposed of as infructuous. In the circumstances, there shall be no order as to costs.

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PINAKI CHANDRA GHOSE, ACJ

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_____________________ VILAS V. AFZULPURKAR, J

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September 4, 2012 DSK

Mohd. Khader, v. The Hindustan Aeronautics Ltd.

Case brief

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Mohd. Khader, v. The Hindustan Aeronautics Ltd.

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