IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FOURTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 17977 of 2007 Between: 1 Ramprakash Agarwal S/o Late Motilal Agarwal, R/o 6-2-1010/1, Khairtthabad, Rajbhavan Road, Hyderabad. 2 Laxminarayana Agarwal S/o Hariram Agarwal, R/o 21-7-664, Ghansi bazar, Hyderabad. 3 Rudraksh Agarwal S/o Mukesh Kumar Agarwal R/o 21-7-872, Gansi Bazar, Hyderabad. 4 Yogesh Kumar Agarwal S/o late Rambilas Agarwal, R/o 21-7-872, Gansi Bazar, Hyderabad. ..... PETITIONER(S) AND A.P. State Wakf Board rep by its Chief Executive Officer, Nampally, Hyderabad. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issuea Writ of Certiorari or any otherappropriate WRit order and quash the order ofthe respondent in proceedings No. M1/17/RR/Prot/05, dated 04-07-2007 and consequently directthe respondent not to interfere with the possession andenjoyment of the petitioners over the land admeasuring ac. 4-15 guntas in Sy. No. 275 of Mamidipally Village, Saroornagar Mandal, Ranga Reddy District, and grant such other relief as it deems fit and proper inthe circumstances of the case. Counsel for the Petitioner:MR.V.VENKATARAMANA Counsel for the Respondent: ABDUL NAJEEB KHAN The Court made the following : THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.17977 of 2007 ORDER: Four petitioners herein allegedly purchased land admeasuring Ac.4.15 guntas in survey No.257 of Mamidipally Village of Saroornagar Mandal, Ranga Reddy District from Sayeeduddin and three others under a registered sale deed, dated 23.05.2006, which is pending for registration as pending document No.P142 of 2006 in the office of the Sub Registrar, Champapet. In the meanwhile, Chief Executive Officer of Andhra Pradesh State Wakf Board (CEO) initiated action under Section 54 of Wakf Act, 1995 (the Act, for brevity). After receiving notice, dated 07.03.2007, petitioners submitted explanation claiming absolute ownership and requesting respondent to drop the action. The CEO referred the matter to an enquiry officer who conducted enquiry and submitted a report on 12.06.1997. Based on the report, CEO passed orders in proceedings No.M1/17/RR/ prot/05, dated 04.07.2007, ordering eviction of petitioners by recording a finding that the land in survey Nos.251 to 282 admeasuring Ac.490.00 guntas of Mamidipally Village, Saroornagar Mandal of Ranga Reddy District, belongs to the Wakf Ashurkhana Alisadh. Aggrieved by the same, present writ petition is filed. CEO has filed counter affidavit opposing writ petition. It is stated that the land is part of the Wakf, and that vendors of petitioners have no proprietary right in respect of the said property. The detailed case sought to be made out in support of the plea is that land claimed by petitioners along with other extent of Ac.408.00 guntas is wakf property. However, detailed reference to the contents is not necessary in view of the point raised by counsel for petitioners. It is the contention of petitioners’ counsel that the power conferred on CEO under Section 54 of the Act is a quasi-judicial power and is required to conduct enquiry summarily in the manner prescribed under the Rules. He also submits that Andhra Pradesh Wakf Rules, 2000 do not contain any such procedure and therefore, CEO committed grave error in remitting the matter to an enquiry officer instead of conducting enquiry by himself. Per contra, learned standing counsel for A.P.Wakf Board submits that when summary enquiry is contemplated under Section 54 of the Act, if CEO adopts the procedure of referring the matter to enquiry officer, the same does not vitiate exercise of power under Section 54(3) of the Act. The only point that arises for consideration is whether CEO while acting as quasi-judicial authority under Section 54 of the Act can get the enquiry conducted by another officer of Wakf Board before issuing proceedings under Section 54(3) of the Wakf Act ordering eviction of an encroacher. Section 54 of Wakf Act reads as under. 54. Removal of encroachment from wakf property: - (1) Whenever the Chief Executive Officer considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is wakf property and, which has been registered as such under this Act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned mutawalli. (2) The notice referred to in sub-section (1) shall be served in such manner as may be prescribed. (3) If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is wakf property and that there has been an encroachment on any such wakf property, he may, by an order, require the encroacher to remove such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the wakf. (4) Nothing contained in sub-section (3) shall prevent any person aggrieved by the order made by the Chief Executive Officer under that sub-section from instituting a suit in a Tribunal to establish that he has right, title or interest in the land, building, space or other property: Provided that no such suit shall be instituted by a person who has been let into possession of the land, building, space or other property as a lessee, licensee or mortgagee by the mutawalli of the wakf or by any other person authorised by him in this behalf. As per Section 54(1) of the Act whenever CEO considers that there has been encroachment of wakf property, he shall issue notice specifying the particulars of encroachment and then pass an order under Section 54(3) of the Act. Section 54(1) and (3) of the Act specifically refers to CEO but not to any officer, however, for the purpose of enforcement, CEO has to send a copy of the order to Sub Divisional Magistrate under Section 55 of the Act. If only the Magistrate has intended that the CEO can exercise his quasi-judicial powers under Section 54 of the Act by resorting to method of appointing an enquiry officer, it ought to have find place in the provision. But no such provision is made in Section 54(1) or 54(3) of the Act. Section 54(3) of the Act contemplates CEO conducting an enquiry in such manner as may be prescribed. As per Section 2(l) of the Act, ‘prescribed’ means ‘prescribed by rules made by the State Government’. In exercise of powers under Section 109(1) of the Act, State Government promulgated Andhra Pradesh Wakf Rules, 2000. Rules are made with reference to Sections 32(2) read with Section 109 (Rule 13), Sections 51, 52 and 53 (Rules 12, 22 and 12), Section 65 (Rule 23) and Section 70 (Rule 24). The Rules, however, are silent as to method and manner of conducting enquiry by CEO. Therefore, it becomes clear that it is only the CEO who should conduct enquiry under Section 54(3) of the Act. Any order passed by the CEO based on the report of enquiry officer would not be in compliance with the law prescribed. Therefore, impugned order is unsustainable. However, the defect pointed out is a curable defect, the matter requires to be re-considered by CEO. Accordingly, the writ petition is allowed setting aside impugned order, dated 04.07.2007. The matter is remitted to CEO, A.P.Wakf Board with a direction to issue notice to petitioners, consider the matter afresh and pass appropriate orders. There shall be no order as to costs. _______________ (V.V.S.RAO, J) 04.12.2008 pln