THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.1229 of 2011 (Dated : 29-11-2011) Between: Mohd. Abdul Hafeez S/o late Mohd. Abdul Aziz Tolichowki, Hyderabad ….Petitioner A n d The A.P.State Wakf Board Hyderabad, rep. by its Chief Executive Officer, Nampally, Hyderabad and another …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.1229 of 2011 ORDER: This writ petition has been ﬁled by Mohd. Abdul Hafeez seeking a mandamus declaring the action of the 1st respondent-A.P.State Wakf Board in not making survey of Sy.No.55 of Dargah Hazrath Ibadullah Shah situate at Ghousepura, Nampally, Hyderabad, as arbitrary, illegal and contrary to the Wakf Act. 2. The petitioner claims that Survey No.55 admeasuring Ac.2.23 guntas is a wakf property having been published in Andhra Pradesh Gazettee, dated 16.8.1984 and that the 2nd respondent is an encroacher on the wakf property admeasuring 172 square yards. He made an application to the 1st respondent to make a survey of Sy.No.55 and remove illegal encroachments. There being no action on the part of the 1st respondent, he approached this Court invoking jurisdiction under Article 226 of the Constitution of India seeking mandamus to the 1st respondent to conduct survey of the house property situated in the premises bearing House No.5-5-173 to 5-5-176 admeasuring 172 square yards. 3. Notice before admission came to be ordered on 28-01-2011. The 2nd respondent entered appearance and filed counter. 4. It is stated in the counter affidavit that series of suits have been filed in respect of the property referred in the writ petition and all the suits ended in dismissal and that the property in occupation of the 2nd respondent is not the wakf property and therefore, the question of getting the land in occupation of the petitioner surveyed does not arise. 5. The petitioner ﬁled a reply aﬃdavit. It is stated in the reply aﬃdavit that the petitioner ﬁled O.S.No.90 of 2011 on the file of the Wakf Tribunal seeking a declaration that the land in occupation of the 2nd respondent is a wakf land. For better appreciation, I may refer para (14) of the reply affidavit which reads as hereunder:- “ I submit that my writ petition is making for survey and pursue the respondent No.1 and given direction for the survey of the wakf property as the respondent No.2 without having right, possession has been making false claim and try to make alienate for his self interest by creating further litigation. ………… ……………………………………………………….. …………….. I submit that Late Mirza Kareemullah Baig having possession of the wakf property filed the writ petition No.17030/2001 and protect the same and it is valid documents”. 6. Heard learned counsel appearing for the parties. 7. Learned counsel appearing for the petitioner submits that the relief sought for by the petitioner is only a direction to the 1st respondent to conduct survey of the wakf land and no prejudice is caused to the 2nd respondent if a survey is conducted. 8. Per contra; learned counsel appearing for the 2nd respondent submits that this is third round of litigation in respect of the property in dispute. The earliest litigation commenced with the initiation of Section 145 Cr.P.C proceedings and the said proceedings ended against the Mutawalli. Thereafter, the Mutawalli ﬁled O.S.No.727 of 1974 seeking for declaration and that the suit ended on 28- 7-1979. The Mutawalli carried the matter in appeal and the said appeal ended in dismissal on 27-3-1981. The Wakf Board ﬁled O.S.No.2198 of 1987 seeking declaration in respect of the self same property and the said suit ended in dismissal on 20th September, 1994. The Wakf Board unsuccessfully ﬁled A.S.No.333 of 1994 and S.A.No.157 of 1999. After the dismissal of the second appeal on 5-8-2010, the petitioner ﬁled this writ petition, so as to keep the litigation alive against the property in dispute. 9. I have given my anxious consideration to the rival contentions of the parties. No doubt, the petitioner has narrated the earlier litigation in the writ aﬃdavit and also in the reply aﬃdavit. The fact remains that the Mutawalli and the Wakf Board made their eﬀorts by initiation of proceedings to get the land in dispute declared as wakf property and their eﬀorts proved to be futile. The petitioner in para (14) of the reply aﬃdavit stated that he ﬁled O.S.No.90 of 2011 and the same is pending before the A.P.State Wakf Board. When the petitioner has already invoked the jurisdiction of competent Tribunal for declaration that the land in dispute is a wakf property, he has to pursue the remedy before the tribunal. Invocation of extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, in the given facts and circumstances of the case, is misconceived. 10. Accordingly, the Writ Petition is dismissed. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.29-11-2011 RAR