THE HON’BLE SRI JUSTICE V.V.S. RAO WRIT PETITION Nos.5261, 5282 AND 6292 OF 2010 26.03.2010 WRIT PETITION NO.5261 OF 2010 Between: Abdul Rahim Khan … Petitioner AND The A.P. State Wakf Board, represented by its Chief Executive Officer And others … Respondents WRIT PETITION NO.5282 OF 2010 Between: Md.Mujeeb … Petitioner AND The A.P. State Wakf Board, represented by its Chief Executive Officer And others … Respondents WRIT PETITION NO.6292 OF 2010 Between: Mohd.Sadullah Khan … Petitioner AND The A.P. State Wakf Board, represented by its Chief Executive Officer And others … Respondents THE HON’BLE SRI JUSTICE V.V.S. RAO WRIT PETITION Nos.5261, 5282 AND 6292 OF 2010 COMMON ORDER: The first two writ petitions were heard on 09.03.2010 and orders were reserved. Subsequently, third writ petition was heard on 19.03.2010. As the order passed by the Revenue Divisional Officer, Hyderabad (RDO) is assailed in three writ petitions, it is convenient to dispose of the three writ petitions by common order. The writ petitions are filed challenging the proceedings of the RDO dated 22.2.2010 issued pursuant to a requisition sent by first respondent under Section 55 of the Wakf Act, 1995, directing petitioners to vacate wakf property and further authorizing the Tahsildar, Asifnagar, to evict petitioners from the respective properties. The challenge is mainly based on contention that the property in question is not wakf property and that petitioners were inducted as lessees by the Government. The Andhra Pradesh State Wakf Board – first respondent; issued a Gazette publication dated 30.8.1984 notifying “Dargah Hzt. Syed Ahmed Badepa” Masjid, Madarsa & Graveyard in premises Nos.10-6-2 and 2/1 admeasuring 58,566.1 Sq.yards situated at Hyderabad city, Ward No.10, Block No.6, as the wakf. Fateha, prayer and burial are the objects of the wakf. The property bearing Municipal Nos.10-6-2/1 to 2/4 was notified as wakf property. The same was registered in File No.23/2 of 1978 by the Wakf Board. The Chief Executive Officer (CEO) of Wakf Board addressed communication in letter No.165/Hyd.III/J2/SNTC/87, dated 19.6.2008 to the RDO. It was informed that the CEO issued notices under Section 54(1) of Wakf Act to as many as 44 persons requiring them to submit explanation as to why they should not be evicted from the wakf property, that on 12.9.2003 orders were passed under Section 54(3) of Wakf Act to remove encroachments and deliver possession of the land/building to the Inspector/ Auditor of wakf, Circle-IV, that encroachers failed to comply with the order. Therefore the matter is referred to RDO under Section 55 of Wakf Act for enforcement. Basing on the same, RDO issued impugned order after seeking clarification. The case of the petitioner in first writ petition as alleged by him is as follows. Petitioner obtained land admeasuring 600 Sq.yards bearing Municipal door No.10-16-22, Bada Bazar, First Lancer, Hyderabad, in 1952 on lease from Revenue department. There used to be Mosque, Dargah and Graveyard under the managing committee of the Mosque. When they interfered with petitioner’s possession, in 1966, he gave a complaint to the District Collector. In 1983, by letter dated 18.7.1983, the RDO directed the petitioner to appear before him with all the documents regarding premises No.10-6-22, Bada Bazar. Petitioner appeared and after enquiry RDO recommended to convert leasehold to freehold. Some time in 2003, Wakf Board issued notice to petitioner treating him as encroacher. He submitted explanation. He also approached the Deputy Director, Survey and Land Rcords, seeking particulars. In response thereto, he was informed vide memo No.A5/TS/885/2003, dated 19.1.2004, that the property is located in T.S.No.3 (Part), T.S.No.7 (Part), Block-C, Ward No.22 of Gudimalkapur village and the land is recorded as, “Central Government” and “Government” respectively. Therefore, the property in question is not wakf property and without there being any enquiry by the Wakf Board, petitioner cannot be evicted. The case of the petitioner in the second writ petition is that he is absolute owner of the property admeasuring 53 Sq.yards with house No.10-5-64/13/A, Plot No.21, survey No.18, Ahmednagar, Hyderabad, which he got under a memorandum of oral gift dated 08.12.1996, confirmed on 04.11.1995 from Sk.Ismail and Sk.Osman, who are original pattadars. In 1996, he filed O.S.No.1517 of 1996 for permanent injunction against Municipal Corporation of Hyderabad and Mandal Revenue Officer and obtained a decree dated 20.9.1996. Without issuing any notice under Section 54(1) of Wakf Act, the impugned order is served by the RDO and, therefore, it is contrary to principles of natural justice. The third writ petition is filed by one Mohd.Sadullah Khan with the following allegations. His father was Pesh Imam of the wakf institutions – Dargah Hazrat Syed Ahmed Badepa Rh., in First Lancer, Hyderabad. Secretary of Jama Masjid and Dargah let out house Nos.10-6-5 and 10-6-6 under rental deed dated 09.04.1980. Father of the petitioner died on 20.03.2003 and was buried in the mosque area itself. Thereafter, the petitioner, his mother and family members are residing in the house. He made a representation to wakf board on 24.03.2008 seeking permission for renovation and construction of house. After doing so, the house was renovated. In February, 2010, he received impugned letter from the RDO. If any dispute arises with regard to nature of property as to whether it is wakf property or Shia wakf or Sunni wakf, the dispute has to be decided by the State Wakf Tribunal constituted under Section 83(1) read with Section 2(q) of Wakf Act. Section 83(2) gives remedy to any Mutawalli or any person interested in wakf or any other person aggrieved by an order made under Wakf Act or Rules made thereunder to file an application before Wakf Tribunal, whose orders shall be final. But as per the proviso to Section 83(9) of Wakf Act a revision lies to High Court against the order or a decision of Wakf Tribunal. The order of eviction passed by the CEO of Wakf Board under Section 54(3) of Wakf Act can be challenged by instituting a suit in the Wakf Tribunal under Section 54(4) of Wakf Act. The counsel appearing for petitioners however contends that the property is not wakf property and, therefore, Section 6 read with Section 83(2) of Wakf Act is not a bar for filing writ petition. They also contend that the order passed by the RDO is only a consequential order and unless and until the CEO passed orders under Section 54(3) of Wakf Act after giving notice under Section 54(1) of Wakf Act, the order cannot be deemed to be an order passed under Wakf Act or Rules made thereunder. Both these submissions are misconceived and without any substance. I n M.Bikshapathi v Government of Andhra Pradesh[1], a Division Bench of this Court (to which I was a Member), held that whatever be the dispute – the nature of the property or whether or not it is a wakf; the person aggrieved has to seek remedy by way of a revision before duly constituted State Wakf Tribunal and such questions cannot be decided in a summary proceedings in a writ petition. The relevant observations are as follows. … the jurisdiction of the Wakf Tribunal cannot be limited by reading Section 6 alone providing for the decision to determine the nature of the wakf property i.e., to the effect whether it is a wakf property or not; whether it is a Shia Wakf or Sunni Wakf and who is the interested person who can institute a suit. Section 6 further specifies that the person interested shall, in relation to the property, include every person who though not interested in the wakf concerned, is interested in such property. We are of the considered view that reading both the sections together and permitting them to operate in their totality, it is within the jurisdiction of the Tribunal to determine whether the wakf property has been rightly leased or wrongly leased or any questions relating to wakf property. In Allauddin Charities and Zakath Wakf v Hameed Ali[2], another Division Bench followed M.Bikshapathi and observed as under. Under sub-section (5) of Section 83, the Tribunal constituted under sub-section (1) of Section 83 shall be deemed to be a civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure while trying a suit or executing a decree or order. The jurisdiction of the Civil Court is specifically barred under Section 85 of the Act. Therefore, when the Tribunal has been conferred with the power to determine any dispute, question or other matter relating to a Wakf or Wakf property under the Act and acts as a Civil Court for all purposes, this Court, in exercise of the jurisdiction under Article 226 of the Constitution, cannot permit a party to bypass such statutory remedy and assign itself the role of statutory authority or Tribunal by dealing with the disputed questions of fact or title. It is only after the issue or dispute is determined by the Tribunal at the first instance, the High Court, in exercise of the power under the proviso to sub-section (9) of Section 83 of the Act gets jurisdiction and can go into the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order it may think fit. We are, therefore, of the view that unless the party aggrieved of the orders of the CEO has availed of the alternative remedy available to him under the Statute and the Tribunal has determined the issue or dispute or the nature of the property as provided under the provisions of the Act, this Court, cannot go into question of validity of the orders passed by the Chief Executive Officer. In Syed Muneer v Chief Executive Officer, A.P.State Wakf Board[3], yet another Division Bench held that even when a person contends that the property which is subject matter of an order under Section 54 of Wakf Act, is not wakf property or that it is not registered as such, the question can be decided by the Wakf Tribunal. Therefore even if the petitioners in these cases contend that the Gazette notification issued by the A.P.State Wakf Board does not cover the property in their possession, being a disputed question of fact, they have to seek remedy under Section 6 read with 83(2) of Wakf Act. A writ petition is not maintainable. The other submission that there was no notice preceding the order passed under Section 54 of Wakf Act cannot be countenanced. A perusal of the impugned order issued by RDO shows that notice was issued on 28.12.2002 and order of eviction under Section 54(3) of Wakf Act was passed on 12.9.2003. All official acts are deemed to have been carried out in accordance with law and the burden is always on the person who says that it was not done according to applicable statute. Even other wise, the jurisdiction of RDO is attracted only by reason of Section 55 of Wakf Act and, therefore, the impugned order is certainly an order made under the Wakf Act. Therefore even against the order of RDO, petitioners can move the Tribunal. The writ petitions, for the above reasons, are dismissed in limine, giving liberty to petitioners to file appropriate applications or suits as contemplated under Section 54(4) of Wakf Act, before the Tribunal. There shall be no order as to costs. _______________ (V.V.S.RAO,J) March 26, 2010 Pln/Ys [1] 1999 (6) ALD 270 (DB) [2] 2002 (1) ALD 67 (DB) [3] 2001 (4) ALD 430 = 2001 (2) LS 321