IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SIXTEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION No.4970 of 2008 Between: Habeeb Mubtaba Al-Idroos, S/o. Late Habeeb Jafar Al-Idroos, R/o. H.No. 20-4-448, Fathe Darwazaq, Hyderabad. ..... PETITIONER AND Andhra Pradesh Wakf Board, Rep. by its Chief Executive Officer, Razzack Manzil, Haj House Building, 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 issue a Writ, order or direction, more particularly one in the nature of Writ of Mandamus declaring the proceedings No. 53/J2/HydIII/98, dated 28-02-2008 of the respondent Wakf Board, as being illegal, arbitrary and unreasonable and in gross violation of the principles of natural justice and contrary to the provisions of the Wakf Act, 1995 and also contrary to the Orders of the A.P. Wakf Tribunal passed in Appeal No. 12 of 1998 and also without jurisdiction and consequently set aside the same. Counsel for the Petitioner: MR.P.LAKSHMA REDDY 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.4970 of 2008 ORDER: Petitioner who is statedly Naib Mutawalli of Wakf institution, “Darga Khittey Saleheen” situated at Darusalam, Nampally, is aggrieved by proceedings of sole respondent dated 28.2.2008. Be it noted that by the said order under Section 54(3) of the Wakf Act, 1995 (the Act, for brevity), respondent ordered removal of encroachment by petitionr at Darga, graveyard and attached properties. The case of petitioner is that he was appointed as Naib Mutawalli in 1981. A writ petition being W.P.No.17374 of 1995 was filed by one Syed Hameed Hussaini seeking direction to respondent to take over Wakf institution under direct management of Wakf Board. The said writ petition was disposed of. Wakf Board filed appeal being W.A.No.1439 of 1996, which was disposed of by Division Bench directing respondent to give opportunity to all concerned and pass necessary orders. Subsequently by proceedings dated 31.12.1997, petitioner was removed. He filed Appeal No.12 of 1998 on the file of Andhra Pradesh State Wakf Tribunal. The same was disposed of on 03.1.2002 remanding the matter to Wakf Board for conducting enquiry. The removal order was set aside. Learned Tribunal observed that removal of petitioner as Naib Mutawalli shall not affect his personal rights to discharge spiritual duties. Be that as it is, even before enquiry is initiated respondent issued notice under Section 54(1) of the Act on 14.12.2007 calling upon petitioner to submit explanation as to why encroachment should not be removed. Petitioner submitted explanation on 22.12.2007. Thereafter the impugned order was passed directing removal of encroachment. A detailed counter affidavit is filed by Chief Executive Officer in- charge (CEO) of respondent. While admitting removal of petitioner and filing Appeal No.12 of 1998, which was disposed of by learned Tribunal on 03.1.2002, it is stated as follows. Aggrieved by the order of learned Tribunal, petitioner preferred C.R.P.No.3311 of 2002. The same was dismissed on 07.4.2003, permitting petitioner to file revision under the Act. Petitioner then filed C.R.P. No.6029 of 2003, which is still pending. This Court heard learned Counsel for petitioner and learned Standing Counsel for Wakf Board, who reiterated their respective positions before this Court. Removal of petitioner is admitted. It is also admitted that removal of petitioner as Naib Mutawalli is subject matter of C.R.P.No.6029 of 2003. There is no order passed either by learned Tribunal or this Court with regard to possession of petitioner. As on today, he is not Naib Mutawalli. Therefore the question whether a Mutawalli or Naib Mutawalli is entitled to be in possession of property of Wakf institution does not arise. As recorded by respondent in the impugned order, petitioner has encroached upon graveyard, Darga and attached properties. Therefore initiation of action under Section 54 of the Act cannot be faulted. This Court however hastens to add that whether exercise of power under Section 54(4) of the Act by CEO in the facts and circumstances of the case is justified or not, is a question which has to be decided in appropriate proceedings. There cannot be any dispute that under Section 54(4) of the Act, person aggrieved by an order passed under Section 54(3) of the Act can institute a suit before Tribunal to establish his right, title and interest in land. Having regard to the same, learned Counsel for petitioner seeks liberty to approach Wakf Tribunal to file a suit. Liberty is given to petitioner to do so. To enable petitioner to obtain appropriate orders, there shall be status quo for a period of two weeks from today. The writ petition, with the above observations and directions, is accordingly disposed of. No costs. ______________ (V.V.S.RAO,J) December 16, 2008. NOTE: Dispatch order copy tomorrow. (By order) YS