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 : 23158 of 2007 Between: Smt.Susheela Kaushik w/o.R.M.Koushik R/o.H.No.19-1-990, Gola Kidiki, Purana Pul Hyderabad-500264 ..... PETITIONER AND The Chief Executive Officer, AP State Wakf Board Haj House, Nampally, Opp:Public Garden, 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 to issue a writ order or direction more particularly one in the nature of writ of mandamus to set aside the proceeding No.M5/12/Port/Hyd/2006 dated 9.8.2007 as illegal, arbitrary, and void and pass Counsel for the Petitioner: MR.MOHAMMAD ABDUL BASITH Counsel for the Respondent : MR.ABDUL NAJEEB KHAN The Court made the following : THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.23158 of 2007 ORDER: Petitioner is allegedly owner and possessor of house No.19-1-989 & 990 admeasuring 102 square yards situated at Gollakidiki, Hyderabad, which she allegedly purchased from Smt.Krishna Devi, under registered sale deed, dated 17.07.1998. It is further alleges that her vendor purchased the said property from Smt.A.Bharati and another under registered sale deed, dated 15.06.1995, who purchased the property under registered sale deed, dated 22.07.1989. After purchasing the property, petitioner is in possession and paying property tax regularly to Municipal Corporation of Hyderabad. The Chief Executive Officer (CEO) of Andhra Pradesh Wakf Board initiated action under Section 54 of Wakf Act, 1995 (the Act, for brevity). After receiving notice, dated 21.07.2006, petitioner submitted explanation through her counsel on 22.06.2007. After receiving explanation, the CEO appointed Sri Habeebuddin Ansari, Executive Officer as enquiry officer, aggrieved by which, present writ petition is filed. Learned counsel for petitioner submits that under Section 54(3) of the Act, power is conferred on the CEO, who has to conduct summary enquiry under quasi-judicial power and that such power to conduct enquiry cannot be delegated. This Court decided similar question in W.P.No.17977 of 2007, which is disposed of today, i.e., 04.12.2008. In the said judgment, this Court held as under. 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. Following the same, writ petition is allowed, impugned order, dated 09.08.2007 is set aside and the matter is remitted to Chief Executive Officer, A.P.Wakf Board, with a direction to conduct enquiry by himself after giving notice to petitioner. There shall be no order as to costs. _______________ (V.V.S.RAO, J) 04.12.2008 pln