IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE NINETEENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION Nos.24092 and 26212 of 2006 WRIT PETITION NO : 24092 of 2006: Between: 1 Smt.D.Padma W/o.d.r.Sheker R/o.H.No.13-6-458/4, Gayatri Nagar, Shiv Bagh, Hyderabad. 2 Smt.D.Bindu W/o.Krupakar R/o.H.No.13-6-458/4, Gayatri Nagar, Shiv Bagh, Hyderabad. ..... PETITIONERS AND 1 Revenue Divisional Officer-cum-Sub-Divisional Magistrate, Hyderabad Division, Hyderabad. 2 Chief Executive Officer, A.P.State Wakf Board, Opp: Public Gardens, Nampally, Hyderabad. 3 Mandal Revenue Officer, Asifnagar Mandal, Mallepalli, Hyderabad. .....RESPONDENTS 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 to declare the proceedings No.B/4868/2006 dated 14.11.2006 passed by the 1st respondent as illegal, arbitrary, unjust and violative of principles of natural justice by issuing appropriate writ or direction more particularly in the nature of writ of mandamus and pass such other order or orders. Counsel for the Petitioners: MR.M.V.S.SURESH KUMAR Counsel for the Respondents: GP FOR REVENUE WRIT PETITION NO : 26212 of 2006: Between: 1 Smt.D.Padma w/o D.R.Sheker, r/o H.No.13-6-458/4, Gayatrinagar, Shiv Bagh, Hyderabad. 2 Smt.D.Bindu, w/o Krupakar, r/o H.No.13-6-458/4, Gayatrinagar, Shiv Bagh, Hyderabad. ..... PETITIONERS AND 1 The Chief Executive Officer, A.P.State Wakf Board, Opp:Public Gardens, Nampally, Hyderabad. 2 Mosque Qutubshahi, Gudimalkapur, Hyderabad represented by its Managing Committee. .....RESPONDENTS 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 to declare the notice dated 17-1-2006 in F.No.M5/55/Prot/Hyd/04 and the consequential order dated 17-4-2006 in F.No.M5/55/Prot/Hyd/04 of the 1st respondent herein is illegal, arbitrary and unjust by issuing appropriate writ or direction more particularly in the nature of writ of mandamus and pass such other order or orders as this Hon'ble Court deems fit and proper. Counsel for the Petitioner:MR.M.V.S.SURESH KUMAR Counsel for the Respondents: (SC FOR WAKF BOARD)ABDUL NAJEEB KHAN The Court made the following COMMON ORDER: THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.24092 and 26212 of 2006 COMMON ORDER: The petitioners in both these cases are same. Therefore, a common order is suffice for their disposal. The two petitioners are co-sisters-in-law and daughters-in-law of one Rajeshwar. They statedly purchased 322 sq. yards of house site comprised in survey Nos.116/1 and others situated in Gudi Malkapur Village, Karwan Sahu, Hyderabad, under an agreement of sale dated 22.02.2002. They constructed a house in 2003, which was assessed to property tax bearing house No.13-6-458/4. The Revenue Divisional Oﬃcer (RDO), Hyderabad, issued orders on 14.11.2006 purportedly under Section 55 of the Wakf Act, 1995 (the Act, for brevity) directing the Mandal Revenue Oﬃcer (MRO) to evict Rajeshwar, S/o Mallayya. The petitioners allege that when MRO came to their premises and tried to evict them, they ﬁled ﬁrst writ petition challenging the same. The Wakf Board ﬁled counter-aﬃdavit in ﬁrst writ petition inter alia stating that Chief Executive Oﬃcer (CEO) of Wakf Board passed orders on 17.04.2006 directing eviction of Rajeshwar, pursuant to which RDO issued proceedings dated 14.11.2006. Therefore, after obtaining a copy of the orders of CEO the petitioners ﬁled second writ petition challenging the same. This Court heard learned counsel for the petitioners and learned standing counsel for Andhra Pradesh Wakf Board. The entire controversy centers around two issues whether a piece of land admeasuring 322 sq.yards in survey Nos.116/1 and others or part thereof forms part of wakf property as alleged by Wakf Board and whether Wakf Board has followed the prescribed due process of law under Section 64(2) of the Act before evicting the petitioners who claimed an independent right to ownership contending that they have nothing to do with the property, if any, owned by Rajeshwar, their father-in-law. Insofar ﬁrst aspect of the matter is concerned, the Court is not inclined to go into the question for two reasons. First, a disputed question of title cannot be adjudicated in a writ petition. Second, when Wakf Board claims the property as of its own by virtue of a Gazette notiﬁcation issued under Section 4 of the Wakfs Act, 1954 (old Act), it carries with it a rebuttable presumption which can only be agitated in a civil Court. However, to a limited extent there can be review of the decision making process by the Wakf Board for passing orders under Section 54(3) of the Act or by RDO under Section 55 of the Act. Learned standing counsel as directed by this Court has placed before this Court a ﬁle bearing No.M5/55/Prot/Hyd/2004 dealing with the property belonging to Mosque Qutub Shahi situated opposite to Bagh Goverdhan, Malkapur, Karwan, Hyderabad. The same would reveal that exercise under Section 54 of the Act was initiated on a letter addressed by MLA to CEO of Wakf Board alleging that M/s Rajeshwar, Amar Singh and Karunakar have encroached upon the land of mosque and started illegal alienations. When the matter was referred to a survey team, it submitted a report enclosing a plan showing the area under illegal occupation. The area under occupation of Rajeshwar was also delineated in the map. Therefore, notice was issued to Rajeshwar on 17.01.2006. He did not raise any objections and therefore, an order was passed on 17.04.2006 under Section 54(3) of the Act ordering Rajeswhar to remove encroachment. When the same was not complied with, a communication was sent to RDO on 13.11.2006 requesting to take steps as per Section 55 of the Act, pursuant to which RDO issued proceedings on 14.11.2006. In the entire ﬁle or the correspondence therein there is no mention of the petitioners nor any notice was issued under Section 54(1) of the Act. The petitioners have placed prima facie material before this Court to show that they are in occupation of the land. As the orders were passed under Section 54(3) of the Act without notice to them, they cannot be adversely aﬀected by such orders. If the land in occupation of the petitioners forms part of the mosque it is always open to CEO of Wakf Board to initiate action under Section 54(1) & (2) of the Act and pass orders under Section 54(3) of the Act. As the matter is pending before this Court, this Court is of the considered opinion that liberty should be given to CEO of Wakf Board to send notice to the petitioners separately and to the address of their lawyer appearing in this case. Till such exercise is completed either Wakf Board or its oﬃcials or RDO cannot evict the petitioners from the disputed land. With the above observations, the writ petitions are disposed of. No costs. _____________ (V.V.S.RAO, J) 19th November, 2008 GHN To 1 Revenue Divisional Officer-cum-Sub-Divisional Magistrate, Hyderabad Division, Hyderabad. 2 Chief Executive Officer, A.P.State Wakf Board, Opp: Public Gardens, Nampally, Hyderabad. 3 Mandal Revenue Officer, Asifnagar Mandal, Mallepalli, Hyderabad. 4 Mosque Qutubshahi, Gudimalkapur, Hyderabad represented by its Managing Committee. 5 2CCs to GP for Revenue 6 2CD copies Form-NIC-OGS/WP{KURR} Form-NIC-OGS/WP{RS}