THE HON’BLE SRI JUSTICE V.V.S. RAO WRIT PETITION No.8068 of 2010 Dated:12.04.2010 Between: S.A.Razzack. … 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 No.8068 of 2010 ORDER: The writ petition is filed challenging the proceedings of the Revenue Divisional Officer (RDO) dated 22.02.2010 issued pursuant to a requisition sent by first respondent under Section 55 of the Wakf Act, 1995, directing petitioner to vacate wakf property and further authorizing the Tahsildar, Asifnagar, to evict petitioner from the subject property. The Andhra Pradesh State Wakf Board – first respondent; issued a Gazette publication dated 30.08.1984 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 19.06.2008 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 12.09.2003 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 is as follows. The wakf property having Municipal No.10-6-19/1, situated at 1st Lancer, Hyderabad, admeasuring 400 square yards was leased out to the petitioner by the then Mosque Managing Committee. Subsequently the rent was enhanced, and the petitioner is in possession of the wakf property. The petitioner has narrated in the affidavit accompanying the writ petition about the various suits and counter suits regarding the subject property, which is not necessary to be gone into in this writ petition. The main contention of the petitioner is that while the petitioner is in possession of the wakf property, the RDO issued the impugned letter alleging that the petitioner has encroached the wakf property and demanded for eviction. It is his case that no notice was issued to him before issuance of the impugned letter, and that the petitioner is a tenant and not an encroacher of the wakf property. 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. Counsel for the petitioner contends 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. The submission is misconceived, and without any substance. I n M.Bikshapathi v Government of Andhra Pradesh[1], a Division Bench of this Court held. … 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 petitioner in this case contends 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. In Salam Khan v Tamil Nadu Wakf Board, Chennai[4], it was held. No doubt, alternative remedy is not an absolute bar to the filing of writ petitions, but at the same time it is well settled that writ jurisdiction is discretionary jurisdiction and when there is an alternative remedy, ordinarily a party must resort to that remedy first before approaching this court. Entertaining writ petitions straight away without insisting that a party should first avail of the alternative remedy is an over liberal approach which has caused immense difficulties to the High Courts in the country because they have added to the huge arrears. The Courts have already become overburdened by this over liberal approach instead of following the settled legal principle that a writ petition should ordinarily be dismissed if there is an alternative remedy. The High Courts in India are already tottering and reeling under the burden of massive arrears which have flooded the dockets of the Court, and such kind of over liberal approach has only multiplied this problem manifold. If this approach is further continued a time will surly come when the High Courts will find it impossible to function. All this has happened because unfortunately some Courts have departed from well-settled legal principles. 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, petitioner can move the Tribunal, which may decide the matter considering merit of contention including the question whether there was valid notice to the petitioner. The writ petition, for the above reasons, is dismissed in limine, giving liberty to petitioner to file appropriate application or suit 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) 12.04.2010 vs [1] 1999 (6) ALD 270 (DB) [2] 2002 (1) ALD 67 (DB) [3] 2001 (4) ALD 430 = 2001 (2) LS 321 [4] AIR 2005 Madras 241