THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.21016 of 2011 (Dated : 09-12-2011) Between: Syed Ahmed Abdul Razzak Quadri @ Khaiser Pasha …Petitioner A n d The Chief Executive Officer, A.P.State Wakf Board, Public Garden, Nampally, Hyderabad and others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.21016 of 2011 ORDER: This writ petition has been filed by Syed Ahmed Abdul Razzak Quadri @ Khaiser Pasha seeking a mandamus declaring the action of the respondents in evicting him from the premises 19-5-18, Dargah Shareef and Masjid Kishan Bagh, Bhadurpura, Hyderabad, as null and void. 2. The petitioner states that his father Syed Fareed Pasha Quadri was the Muthavalli of Masjid of Dargah Hazrath Syed Shah Nadeemullah Hussaini Sahab bearing Municipal No. 19-5-18. His father executed a Will on 23-7-1979 bequeathing the residential premises in favour of him and his other three brothers. His father died on 06-01-1984. He has been in possession and enjoyment of a portion of the residential premises which has been bequeathed in his favour under the Will, dated 23-7-1979. He left for USA in 1992 and acquired American citizenship. As and when he visits Hyderabad, he resides in a portion of the premises bearing No.19-5-18, which has been given to him under a Will, dated 23-7-1979 executed by his father. Disputes arose between him and his another brother, namely Syed Shah Ahmed Moinuddin Quadri @ Hyder Pasha on one side and Syed Shah Ahmed Kaleemullah Quadri @ Shab on the other side. Various proceedings, both civil and criminal, have been initiated by the petitioner and his brother Syed Shah Ahmed Moinudddin Quadri @ Hyder Pasha. The petitioner filed a complaint before the police alleging that he has been dispossessed from the premises in occupation. The police registered a case in Crime No.32 of 2010 and filed final report referring the case as lack of evidence. Syed Wasiullah Quadri –3rd respondent filed a report before the Station House Officer, Bahadurpura P.S., on 24-01-2011 alleging that the petitioner broke open the lock of the room and bolted it from inside. The police registered a case in Crime No.11 of 2011, investigated the crime and filed charge sheet in the Court of Chief Metropolitan Magistrate, Nampally, Hyderabad. The petitioner also filed W.P.No.2048 of 2011, and W.P.No.6437 of 2011 assailing the inaction of the police in conducting the investigation and also the inaction of the police in not taking action in recovering luggage from the possession of Syed Wasiullah Quadri @ Nizam –3rd respondent herein. Both the writ petitions came to be disposed of on 7-2-2011 and 22-3-2011 respectively. On 24-01-2011, the 3rd respondent addressed a letter to the Chief Executive Officer, A.P.State Wakf Board (1st respondent) alleging that the petitioner herein trespassed into a portion of Masjid room and took possession forcibly from the Masjid and his family. Basing on the representation of the third respondent, the Chief Executive Officer, A.P.State Wakf Board addressed a letter to the Station House Officer, Bahadurpura P.S seeking appropriate assistance. On 01-2-2011, the incharge Task Force, under the cover of panchanama broke open the lock of the room and handed over the belongings found in the room to the third respondent. Hence this writ petition. For better understanding of the grievance of the writ petitioner, I deem it appropriate to refer paragraphs (3) and (4) of the affidavit filed in support of the writ petition, which read as hereunder:- “ I submit that my father expired on 6.1.1984. Later my brother Syed Shah Ahmed Moinuddin Quadri @ Hyder Pasha made an application to the 1st respondent. The 1st respondent by his proceedings No.132/B2/M/Hyd./97 on 24.12.1997 appointed my brother as Muthawalli of the above Dargah. He discharging the functions as a Muthavalli. Later, he made an application to the 1st respondent to appoint his son as a Muthavalli. Based on the application the 1st respondent appointed 3rd respondent as Muthavalli. Since the date of his appointment he tried to evict us from our residential portions. He gave a complaint against my brother Syed Shah Ahmed Moinuddin Quadri @ Hyder Pasha alleging that he is a tress passer of his portion. Based on the complaint of the 3rd respondent, the 1st respondent issued show cause notice under Section 54(1) of Wakf Act, 1995 to my brother Syed Shah Ahmed Moinuddin Quadri @ Hyder Pasha on 3.2.2011. My brother Syed Shah Ahmed Moinuddin Quadri @ Hyder Pasha submitted his explanation to the show cause notice. The 1st respondent without considering the explanation illegally passed eviction order. Aggrieved by the orders of the 1st respondent my brother Syed Shah Ahmed Moinuddin quadri @ Hyder Pasha filed O.A.9 of 2011 and obtained the injunction order, as the case is pending till this day before the Wakf Tribunal. 4. I submit that I along with my brother Syed Shah Ahmed Moinuddin Quadri @ Hyder Pasha filed suit on the file of the Wakf Tribunal on 30.4.2010 for injunction against the 1st and 3rd respondents herein, the same was numbered as O.S.No.51 of 2010 on the file of Wakf Tribunal and it is pending before the Hon’ble Court till this day. I also filed I.A.No.281 of 2010 for interim injunction. The 3rd respondent herein filed his counter denying the facts. My brother Syed Shah Ahmed Moinuddin Quadri @ Hyder Pasha filed O.A.7 of 2011 against the illegal appointment of the 3rd respondent on the file of the Wakf Tribunal as it is pending till this day”. 3. When the writ petition came up for admission on 02-8-2011, the respondents 1 to 3 entered appearance through their respective counsel and sought time for filing counters. Subsequently, they filed counters. It is stated in the counter of the 1st respondent that notice under Section 54(1) of the Wakf Act, 1995 (“the Act”, in short) came to be issued to Sri Syed Shah Ahmed Mohiuddin Quadri @ Hyder Pasha and eviction orders came to be passed in terms of Section 54(3) of the Act. Thereupon, the said Syed Shah Ahmed Mohiuddin Quadri filed O.A.No.9 of 2011 questioning the eviction order and the said OA is pending. It is further stated in the counter that on receipt of representation that the petitioner herein encroached upon a portion of the Masjid room and took possession forcibly from the Moazam of mosque and his family and that during interrogation, he has produced the copy of Will deed stating that he is the absolute owner of the trespassed room. The Board as an interim measure has issued a letter requesting the P.S., Bahadurpura on 24-01-2011 to enquire into the matter and take appropriate action. 4. The plea of the third respondent is that the petitioner trespassed into a portion of Dargah to justify filing of the suit O.S.No.51 of 2010. The police registered a case against the petitioner in Crime No.11 of 2011 on 21-01-2011, conducted investigation and filed a charge sheet and the case is pending trial before the Chief Metropolitan Magistrate, Nampally. The report filed by the petitioner has been investigated and final report has been filed stating that the contents of the report as incorrect. It is also stated in the counter that the trespasser and encroacher are quite different and the wakf board has legitimate right to protect the property from the tresspassers. The petitioner is a citizen of America and he is not in possession of the wakf property. Even otherwise, the petitioner has an alternative remedy by way of approaching the Wakf Tribunal under Section 83 of the Act. As such the writ petition is not maintainable. 5. The petitioner filed W.P.M.P.No.36120 of 2011 to receive certain additional documents to prove that he resides in the premises bearing No.19-5-18. The said WPMP came to be allowed on 04-11- 2011. 6. When the writ petition came up for admission hearing, with the consent of the learned counsel appearing for the parties, it is taken up for final disposal. 7. Heard learned counsel appearing for the petitioner and learned Standing Counsel for A.P.State Wakf Board appearing for respondents 1 and 2, and learned counsel appearing for respondent No.3. 8. Learned counsel appearing for the petitioner submits that the 1st respondent has to follow due procedure for evicting the encroachers of the wakf property. Even if the petitioner is an encroacher of the wakf property, necessary proceedings are required to be initiated under Section 54 of the Act. In case, conveying the property by the Syed Fareed Pasha Quadri under Will dated 23-7-1979 is not legal, necessary proceedings are required to be taken under Section 52 of the Act. Without taking recourse to under Section 52 or Section 54 of the Act, the 1st respondent cannot address letter to the Station House Officer basing on the representation of the third respondent to dispossess the petitioner from the premises in his occupation. A further submission has been made that the 2nd respondent has no authority to break open the lock of the premises and handover the belongings of the petitioner to the third respondent under cover of panchanama dated 01-02-2011. Learned counsel refers Photostat copy of the marriage certificate to prove that the petitioner resided in the premises bearing D.No.19-5-18, Dargah Shareef and Masjid, Kishan Bagh. In support of his submissions, reliance has been placed on the decisions of this Court in Agrapu Venkatamma v. Revenue Divisional Officer, Srikakulam[1] and Muppu Raju Lakshmi v. A.P.State Wakf Board represented by its Chief Executive Officer, Hyderabad and another[2] 9. Learned counsel appearing for the respondents 1 and 2 submits that the petitioner never resided in the premises bearing No.19-5-18 and he has been residing in United States and he along with his brother tried to grab the property by filing O.S.No.51 of 2010 and having failed to secure any interim orders in the said suit, resorted to file a report before the police as if he has been disposed from the premises on 15-02-2010. The police, after due investigation filed a final report stating that the action lack of evidence. He would also contend that the petitioner and his brother made various attempts to secure some order or the other, so as to take possession of the property owned by the institution and since all efforts put by him and his brother proved to be futile, he resorted to file series of writ petitions including the present one and whereas his brother filed O.A.No.9 of 2011 questioning the order of eviction. 10. Learned counsel appearing for the 3rd respondent submits that the petitioner has been residing in America having acquired American citizenship in the year 1992 and for the first time, he tried to enter into the premises on 21-01-2011 and thereupon, the third respondent presented a report to the Chief Executive Officer, A.P.State Wakf Board (1st respondent) and in turn, the 1st respondent addressed letter to the Station House Officer to render necessary assistance. He would also submit that there is a distinction between the trespasser and encroacher and the procedure contemplated under Section 54 of the Act is applicable to encroachers and not trespassers. Even otherwise, the petitioner and his brother already invoked the jurisdiction of the Tribunal by filing O.S.No.51 of 2010 and therefore, the invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, in the given facts and circumstances of the case, is wholly unwarranted. 11. It is a matter of record that the petitioner has been residing in United States from 1992 having acquired American citizenship. The petitioner and his brother filed O.S.No.51 of 2010 seeking for injunction. In the suit, the petitioner contended that he is in possession of 130 square yards and whereas his brother is in possession of 120 square yards. He did not choose to obtain any interim orders in the said suit. He filed a complaint before the Station House Officer on 10-3-2010 alleging that he has been dispossessed from the premises on 15-2-2010. The police completed investigation and filed a final report stating the case as lack of evidence. Of course, it is contended by the learned counsel appearing for the petitioner that the petitioner has filed a protest petition before the concerned Court and the same is pending consideration. It is trite to note the relevant portion in the report presented by the petitioner herein before the Station House Officer, Bahadurpura. “ It is submitted that the complainant also lodged a complaint on 15/02/2010 with regard to the trespass in the rooms of the complainant by the A.1 to A.4 and abused most filthy language and also attacked on the complainant by the A.1 to A.4 and also he has taken the possession of the said rooms under lock and key, during attack the complainant has narrowly escaped in the hands of A.1 to A.4 and presently the complainant residing with his youngest brother by name Syed Shah Ahmed Moinuddin Quadri @ Hyder Pasha”. 12. A reading of the above-referred paragraph does not give any room for doubt that the petitioner has been dispossessed from the premises on 15-02-2010. It is not clear from the affidavit filed in support of the petition on what date he repossessed the premises. Various proceedings initiated by the petitioner and his brother by invoking the jurisdiction of the Wakf Tribunal are pending adjudication. There is a serious dispute between the parties relatable to possession of the premises bearing No. 19-5-18. Since the proceedings are pending before the competent tribunal, invocation of extraordinary jurisdiction of this Court under Article 226 of the Constitution of India by the petitioner cannot be justified. 13. Accordingly, the writ petition is dismissed. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.09-12-2011 RAR [1] 2007(2) ALT 595 [2] 2010(3) ALT 244