IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 23373 of 2004 Between: 1 D.Aswartha Reddy, s/o Thimma Reddy, r/o Gadivemula (V) & (M), Kurnool District. 2 D.Abdul Khader, s/o D.Chinna Kamal Saheb, r/o Gadivemula (V) & (M), Kurnool District. 3 D.Chinna Mabu Saheb, s/o D.Pedda Kamal Saheb, r/o Gadivemula (V) & (M), Kurnool District. 4 C.Ch.Venkata Swamy, s/o Chakali Pullanna, r/o Gadivemula (V) & (M), Kurnool District. 5 D.Abbasu, s/o D.Kamal Saheb, r/o Gadivemula (V) & (M), Kurnool District. 6 Ismail, s/o D.Kamal Saheb, r/o Gadivemula (V) & (M), Kurnool District. 7 Chakali Pedda Venkata Swamy, r/o Gadivemula (V) & (M), Kurnool District. 8 Chakali Narayana, s/o Chakali Pullanna, r/o Gadivemula (V) & (M), Kurnool District. 9 Chakali Chinna Muthyalu, s/o Chakali Pullanna, r/o Gadivemula (V) & (M), Kurnool District. 10 D.Pedda Mubunni, r/o Gadivemula (V) & (M), Kurnool District. 11 D.Chinna Dastagiri, s/o D.Kamal Saheb, r/o Gadivemula (V) & (M), Kurnool District. 12 S.Noorjahanu, w/o Hamkabariff, r/o Gadivemula (V) & (M), Kurnool District. ..... PETITIONER(S) AND 1 The Chief Executive Officer, A.P.Wakf Board, Hyderabad. 2 The Revenue Divisional Officer, Nandyal, Kurnool District. 3 Jamia Mosque, Gadivemula (V) & (M), rep., by its S.Hussain Miya, s/o Idur Sab, Gadivemula (V) & (M), Kurnool District. .....RESPONDENT(S) 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 an appropriate writ, order or direction more particularly in the nature of writ of MANDAMUS to set aside the proceedings Rc.J.No.641/2004 dated 6-11-2004 passed by the 2nd respondentas it is illegal and to pass such other order or orders Counsel for the Petitioner:MR.E.AYYAPU REDDY Counsel for the Respondent No.: GP FOR REVENUE The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM W.P.No. 23373 of 2004 03-03-2009 Oral Order: Heard the learned counsel for the petitioners; the learned standing counsel for the A.P. Wakf Board for the 1st respondent; the learned Government Pleader for Revenue for the 2nd respondent and Sri Syed Shareef Ahmed, learned counsel for the 3rd respondent. The petitioners assail the order of the 2nd respondent dated 06-11-2004, which reads as under: “The Chief Executive Officer, A.P. State Wakf Board, Hyderabad in the reference read above has stated that an order under Section 54 (3) of the Wakf Act, 1995 has been issued to the illegal encroachers mentioned below for removal of the encroachment over the Wakf land shown against each and to deliver the vacant land possession to the Inspector Auditor Wakf, Kurnool within (7) days from the date of receipt of the said order, but they failed to deliver the possession of the land to the Inspector Auditor Wakf, Kurnool even after expiry of the period mentioned in the said order. Hence, a requisition made to the Revenue Divisional Officer and Sub-Divisional Executive Magistrate for enforcement of orders under Section 54 (3) of Wakf Act, 1995. The details of the encroachers over the Wakf land in Sy.No. 289/1 of Gadivemula village belonging to Jamia Mosque, Gadivemula and the extent are as follows: Sl.No. Name of the encroacher Area encroached. 01. Chakali Chinna Muthyalu -- 0-11 cents by constructing 02. Pedda Venkata Swamy pucca house. 03. Chinna Venkata Swamy 04. Narayana 05. Chinna Dastagiri --0-12 cents constructing pucca 06. Pedda Dastagiri house and thatched shed. 07. Ismail 08. Abbas 09 Chinna Peer Saheb 0-03 cents pucca house. 10 Noorjahan 0-03 cents pucca house 11 Pedda Kamal Sab 0-03 cents pucca house 12 D. Khader 0-03 cents pucca house 13 Dishan Aswartha Reddy 0-21½ cents Accordingly the above individuals are hereby ordered U/sec. 55 of the Wakf Act, 1995 to vacate the premises shown above against them in Sy.No. 289/1 of Gadivemula village and Mandal (15) days and handed over the vacant possession to the Inspector – Auditor Wakf, Kurnool, failing which after expiry of the stipulated period, they may be evicted from the land in question by using such force duly following the procedure as per law. The Inspector – Auditor Wakfs, Kurnool is hereby directed to take the vacant land possession from the persons whom the orders are hereby issued and report compliance.” The petitioners assail the impugned order as illegal and without jurisdiction and assert that the lands in survey No.289/1 of Gadivemula village, Kurnool District are service Inam lands granted in favour of the original “Mullahs” of the 3rd respondent—Mosque, who had been enjoying those properties in their own right rendering service to the Mosque. It is also contended that the “Mullahs” were granted pattas; had divided the properties amongst themselves; and had later alienated these properties through several registered sale deeds in favour of the petitioners. It is further pleaded that the petitioners constructed houses in the sites and have been in possession and enjoyment for over three decades on the property in their own right. In 1998, the 1st respondent initiated action against the Muthavallis for irregularities committed in the administration of the 3rd respondent-Mosque and constituted Managing Committees from time to time. One such Committee was constituted on 27-02-2004. One Hussain Miah claiming to be the Vice President of the Managing Committee of the 3rd respondent-Mosque filed W.P.No. 10138 of 2004 against the 1st and 2nd respondents and others for enforcement of the orders of the Wakf Board passed in the year 1999. Thereafter the 3rd respondent influenced the 1st respondent to issue a requisition on 16-09-1999 to the 2nd respondent upon which the impugned order is passed by the 2nd respondent under Section 54 of the Wakf Act, 1995 (for short ‘the Act’). The petitioners assert that the action initiated under Section 54 of the Act is incompetent. It is contended on behalf of the petitioners that while Section 51 of the Act declares that any gift, sale, exchange or mortgage of any immovable wakf property shall be void unless such gift, sale, exchange or mortgage is effected with the prior sanction of the Board; action for recovery of the property transferred in contravention of Section 51 of the Act is required to be taken in accordance with the provisions of Section 52 of the Act, by the Board sending a requisition to the Collector within those jurisdiction the property is situate to obtain and deliver the possession of the property to it. It is contended on behalf of the petitioners that action under Section 54 of the Act is incompetent since that provision deals with removal of encroachment from wakf property. Having regard to the different provisions in Sections 52 and 54 of the Act, it is contended, encroachment is distinct from a possession of Wakf property obtained pursuant to a prohibited alienation (within the meaning of Section 51 of the Act) and eviction of such possession ought to be pursued under Section 52 of the Act. The petitioners also contend that no notices as required under Section 54 (2) of the Act have been served on the petitioners. On behalf of the respondents, the 1st respondent has filed a counter affidavit. This respondent states that on examination of the matter, it was discovered that the 3rd respondent possessed lands of an extent of Ac. 37-88 in different survey numbers in Gadivemula village which are notified as wakf properties as per the Andhra Pradesh Gazette Part-II published on 24-10-1963. Since the petitioners are seen to be the encroachers on this property, action under Section 54 of the Act had been taken and notice dated 17-03-199 served on the encroachers calling upon them to show cause on or before 05-04-1999 why an order requiring removal of encroachment should not be passed. Despite receiving the notice, the encroachers did not respond to the show cause. The answering respondent thereupon examined the issue on the basis of the records and sent the requisition dated 16-09-1999 to the 2nd respondent with subsequent reminders on 22-11-1999; 15-07-2000; 06-10-2001; 31-01-2002; 09-03- 2002; 02-08-2003; 06-12-2003 and 25-06-2004. Eventually the 2nd respondent passed the impugned order calling upon the petitioners – encroachers – to deliver possession of the encroached property to the 3rd respondent—Mosque. The 1st respondent in the counter affidavit also states that since the petitioners have no title or lawful possession of the property, the mere fact that they have made constructions thereon and are paying taxes to the Gram Panchayat, is of no legal consequence. In conclusion, the 1st respondent beseeches rejection of the writ petition. On behalf of the petitioners, the allegations in the writ petition are reiterated and it is further submitted that show cause notices said to have been served on the petitioners, have in fact not been served. The learned standing counsel for the 1st respondent-Board has produced records before this Court to suggest that the 1st respondent’s notices dated 17-03-1999 have in fact been served on the petitioners. In the context of the claim on behalf of the petitioners that no notices have been served and the position on behalf of the 1st respondent that notices have not only been sent to the petitioners, but have also been served on them and their signatures obtained in token of receipt of notices, this is a disputed question of fact. Section 54 (4) of the Act enjoins that notwithstanding an order passed by the Chief Executive Officer under sub- section (3) of Section 54 of the Act, any person aggrieved by such an order, may institute a suit before the Wakf Tribunal established qua the provisions of Section 83 of the Act, to establish that such aggrieved person has right, title or interest in the land, building, space or other property. Section 83 (2) of the Act also enjoins that any person aggrieved by any order passed under the Act or the Rules made thereunder, may make an application within the time specified in the Act or where no such time is specified, within such time as may be prescribed, to the Wakf Tribunal for the determination of any dispute, question or other matter relating to the wakf. In the light of the jurisdiction available to the Wakf Tribunal whether under Section 54 (4) of the Act or Section 83 (2) of the Act, it is apparent that the petitioners’ grievance as to the validity of the order of the 1st respondent dated 06- 11-2004 is amenable to scrutiny and determination by the Wakf Tribunal. Even the issue whether the order of the 1st respondent dated 16-09-1999 is incompetent having been issued under Section 54 of the Act; which it ought to have been issued only under Section 52 of the Act, is an issue that could be determined by the Tribunal. Even the claims of the petitioners as to the title in the property on the basis of what they contend to be valid and legitimate alienations in their favour by the Mutawallies and the further claim that these properties are properties of Mutawallies and not the property of wakf are all issues that may substantially be determined by the Wakf Tribunal, in exercise of jurisdiction either under Sections 54 (4) or 83 of the Act. On the aforesaid analysis, this Court is not inclined to determine the issues raised in this writ petition, since the petitioners are seen to have an effective, alternative statutory remedy before the Wakf Tribunal. The writ petition is accordingly dismissed with liberty to the petitioners to pursue appropriate remedies under the provisions of the Act. No costs. ___________________ GODA RAGHURAM, J Dated: 03-03-2009 Pvks