IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SECOND DAY OFAPRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 4395 of 2000 Between: K.Syed Nazeer, S/o. K.Syed Hyder, Door No.2-189, Cross Road, Oldpet, Palamaner, Chittoor District. ..... PETITIONER AND 1 The District Collector, Chittoor 2 The Executive Officer, Gram Panchyat, Palamaner, Chittoor District. .....RESPONDENTS 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 an appropriate Writ, order or direction, more particularly one in the nature of Mandamus declaring the orders of the Respondents culminating in the order Roc.No.45/99/A2 dated 17-5- 1999 of the 2nd Respondent herein as illegal and without jurisdiction and consequently for bear the Respondents from interfering with the possession and enjoyment of the premises bearing D.O.No.11-96/2 Gudiyatham Road, Palamaner, Chittoor District and to pass such other order or orders as this Hon'ble Court may deems fit and proper. Counsel for the Petitioner: MR.K.ASAD AHAMED Counsel for the Respondent No.: GP FOR REVENUE The Court made the following: ORAL ORDER: The petitioner assails the order of the second respondent dated 17-05-1999 directing the petitioner to stop construction of house bearing D.No. 11-95/2, Gudiyatham Road, Palamaner, Chittoor district forthwith; further directing that no construction should be undertaken till further orders are received from the higher authorities; and threatening that any further construction will tantamount to disobedience of the order of the Collector and be liable for punishment as per rules. The second respondent issued this impugned order on the basis of an order of the first respondent dated 15-05- 1999 which apparently directed stoppage and demolition of illegal constructions undertaken by the petitioner in the premises referred to above. The petitioner claims to be the owner and to be in possession of house bearing D.No.11-96/2, Gudiyatham Road, Palamaner, Chittoor district; that the house was constructed on the land in survey No. 370/7, Palamaner, Chittoor district; and that the said property originally belonged to his grandfather, late K. Khader Saheb. The petitioner claims to be running some establishments in the structures in the property since twenty (20) years; later to have obtained permission from the second respondent by orders dated 12-03-1999 and to have constructed a regular building whereat he is running some businesses. There was some dispute between the petitioner and his paternal- uncle K. Syed Dastagir. Resultantly civil litigations ensued between them. An analysis of such disputes is beyond the scope of this writ petition. According to the petitioner at the instance of his paternal uncle, the first respondent issued the order dated 15-05-1999 as a consequence of which the second respondent issued the impugned order dated 17-05-1999. The petitioner states that he enquired as to the genesis of the impugned order and learnt that at the instance of the petitioner’s paternal uncle, a telegram was issued by the President of the District Wakf Committee, Chittoor claiming the property to be wakf property and therefore the constructions put up thereon by the petitioner are illegal. As a consequence of the representation by the District Wakf Committee, the first respondent issued the order which resulted in the impugned order by the second respondent. The petitioner assails the order on a variety of grounds including that the order of the second respondent consequent on the order of the first respondent, is patently without jurisdiction and that no notice or opportunity is afforded to the petitioner before the first respondent issued the order of demolition after characterizing the constructions as illegal and unauthorized. The first respondent has filed a counter affidavit asserting that the property in question was notified in the A.P. Gazette dated 28-06-1962 qua serial No. 2938 as a Wakf property known as Peerla Chavadi also known as Keelapatla Ashurkhana. Further, according to the first respondent, the petitioner’s grandfather was the Gazetted Muthawalli. The petitioner is alleged to have made illegal constructions in the Wakf property. On the complaint of the President of the District Wakf Committee, the answering respondent directed the Mandal Revenue Officer, Palamaner and the Executive Engineer, Grampanchayat, Palamaner to stop the constructions immediately. In obedience thereto, the second respondent issued the impugned order. The counter rebuts the petitioner’s claim to being the owner of the property and asserts that the property belongs to the Wakf. It is further stated by the first respondent that as a consequence of the constructions undertaken by the petitioner, there was interference to the performance of the Moharram festival leading to displeasure amongst Muslim community. In any event, the first respondent does not in his four pages, six paragraphs counter set out the legal basis for the exercise of power leading to the issuance of the order dated 15-05-1999. The petitioner’s paternal uncle Syed Dasthagir impleaded herein as third respondent reiterates the first respondent’s theme that the property belongs to the Wakf and the petitioner made illegal constructions and as a consequence of this transgression of the right of Musilm faith, the District Wakf Committee had petitioned the Collector who issued the order dated 15-05-1999. It is suggested by Sri Gangaiah Naidu, learned senior counsel appearing for the third respondent that there is reservoir of power available to the Collector under the provisions of Section 128 of the A.P.Panchayat Raj Act, 1994 (for short ‘the Act’). This contention needs to be considered. Section 128 of the Act enacts the availability of an appellate remedy and provides that an appeal lies to the Gram Panchayat from any order of the executive authority granting, refusing, suspending or revoking a license or permission. Sub-section (2) of Section 128 of the Act provides a second appeal from the decision of the gram panchayat passed in an appeal under Sub-section (1) of the Act. In the case on hand, there is no appellate order passed by the gram panchayat, which is susceptible to a second appellate scrutiny. The Gram Panchayat had granted permission to the petitioner for the construction on 12-03-1999. It is an order of the first instance. Therefore, an appeal against such an order was available only under Section 128 (1) of the Act and that was to the gram panchayat itself against the order of an executive authority granting permission. It is represented by the learned Government Pleader for Panchayt Raj that a second appeal against an appellate order under Section 128(1) of the Act is provided to the District Panchayt Officer in terms of the specification of second appellate authority in G.O.Ms.No. 139 dated 18-04- 2000. In any event, the first respondent is neither the first appellate authority nor the second appellate authority. The entertainment of a representation by the District Wakf Committee by the Collector and the issuance of the order dated 15-05-1999 is neither expressed to be in exercise of any power nor is justified under any known grant of power by any of the respondents. The order of the first respondent dated 15-05-1999 suffers from another fatal infirmity. It directed demolition of the structures constructed by the petitioner even without affording an opportunity to the petitioner. It is therefore an order violative of the essential principle of natural justice and therefore a nullity and are stillborn. Sri Gangaiah Naidu, learned senior counsel suggested that a remedy of appeal/revision to the government is available. The order of the first respondent itself is patently without jurisdiction. There is no provision in the Act conferring a revisional or appellate scrutiny to the State Government against such non-existent exercise of power. The order of the first respondent which is the genesis of impugned order by the second respondent being patently without jurisdiction, cannot legitimize the impugned order. The order of the second respondent dated 17-05-1999 must therefore perish and is accordingly quashed. Needless to state that the order of the first respondent dated 15-05-1999 should also perish for patent lack of jurisdiction and violation of the principles of natural justice. On behalf of the fourth respondent, it is contended that valuable Wakf property is being deprecated by the petitioner. This lament of the Wakf Board is incomprehensible. A plenitude of regulatory power is conferred on the Wakf Board under the provisions of Wakf Act, 1995. The gram panchayat earlier in point of time granted permission to the petitioner under which the constructions have been made. Instead of pursuing the amplitudious powers, it is intriguing that the Wakf Board seeks to petition the District Collector and with a view to establish its title to the property before an executive agency who is primarly unsuited, untrained and un-empowered to determine title. At any rate, the petition by or at the instance of Wakf Board cannot energize or confer jurisdiction on the District Collector, a jurisdiction which is not conferred by a legislative grant. The writ petition must succeed and is accordingly allowed. In the circumstances, however, without costs. ____________________ GODA RAGHURAM, J Dated: 02-04-2008 Pvks/*