IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 26338 of 2007 Between: Mohammed Mudassir, S/o Abdul Khayum, Residing at House no.11-2-173, Nampalli, Hyderabad. ..... PETITIONER AND 1 the State of Andhra Pradesh represented by its Secretary, Revenue Department, Secretariat Buildings, Hyderabad. 2 The Andhra Pradesh State Wakf Board, represented by its Chief Executive Officer, Haj House Complex, Oppsoite to Public Gardens, Nampalli, Hyderabad. 3 Mir Ahmed Ali, S/o late Dawood Ali, Residing at D.No.18-12-419/569, Hafix Babanagar, Chandrayanagutta, Hyderabad. .....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 issue an appropriate writ, order or direction, in the nature of mandamus, declaring the amendment issued and published in the Gazette bearing No.51, dated 29-12- 1988 in respect of the premises bearing Door No.5-7-420/2, admeasuring about 100 sq. yards situated near Masjid Tek, Nampalli, Hyderabad, treating it as the Wakf Property, as being illegal, arbitrary and contrary to the earlier notification and violative of principles of natural justice; and pass such other or further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.SYED SHAREEF AHMED Counsel for the Respondent No.1: GP FOR REVENUE Counsel for Respondent No.2 : Abdul Najeeb Khan, Standing Counsel for A.P.State Wakf Board Counsel for Respondent No.3 : Syed Ashfaq Ahmed The Court made the following : THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.26338 of 2007 ORDER: Graveyard known as Mir Rahmat Ali situated at Nampally near Majid-e-Tek, is registered Wakf vide Muntakab bearing No.998, dated 24.02.1953, entered in the Book of Endowment pursuant to Resolution of Andhra Pradesh Wakf Board being Resolution No.13 of 1987, dated 16.01.1987. In column 2 of the Book of Endowment, it was mentioned as under. Graveyard, known as Mir Rahmat Ali (Late) son of Late Mir Dawood Ali at Nampally circle near Masjid-e-Tek, Nampally valuation Rs.500/- as per plan. On 21.04.1988, Andhra Pradesh Wakf Board passed resolution No.45 of 1988, to amend column 2 subject to the outcome of the Court order in O.S.Nos.184, 185 and 186 of 1982 pending in City Civil Courts regarding some portion of the graveyard. The amendment made in column 2 in the place of above entries. Graveyard, known as Mir Rahmat Ali (Late) son of Late Mir Dawood Ali with open land and premises bearing M.C.H.No.5-7-429, 5-7-420/1, 5-7-420/2 and 5-7-420/3 – total area 998.66 square yards as per old registered plan situated at Nampally, near Masjid-e-Tek, Nampally, Column No.11. The amendment to Muntakab No.998 in file No.2195/2/1350 Fasli was notified in Andhra Pradesh Gazette, dated 29.12.1988. Thus, as per the amended Muntakab the open land admeasuring 998.66 square yards (as per old registered plan) and premises bearing MCH Nos.5-7-429, 5-7-420/1, 5-7-420/2 and 5-7-420/3 are Wakf properties. In challenging about amendment petitioner has set up the following case. His father allegedly occupied Government Poramboke land in 1960. He was running a firewood depot, which was subsequently converted to Kirana stores and then into Hotel. The property in his occupation is nothing to do with graveyard with an extent of 66.08 square yards, which is a Wakf property. The petitioner alleges that in 1965, survey was conducted as per Andhra Pradesh Survey and Boundaries Act, 1923. In this survey, it was noticed that the land in occupation of various persons is a slum area. Accordingly, the land was taken over under Andhra Pradesh Slum Improvement (Acquisition of Land) Act, 1956 (Slum Improvement Act, for brevity). The petitioner alleges that a certificate was given to his father in 1979. The petitioner further alleges that the subject Wakf was notified on 30.08.1984 and without notice first respondent issued notification, dated 29.12.1988 amending Muntakab, which is illegal and arbitrary. He also contends that as per Section 4(4) of the Wakf Act, 1995, periodical survey of Wakf properties by Government appointed Commissioner of Survey has to be undertaken after expiry of twenty years and still such survey is ordered, there cannot be amendment changing Muntakab or Book of Endowment. The petitioner also refers to the decision of this Court in B.Gowra Reddy v Government of Andhra Pradesh and an unreported Judgment of this Court, dated 22.03.2007 in W.P.No.107 of 1998 in support of these contentions. Andhra Pradesh State Wakf Board (second respondent herein) filed counter affidavit. It is stated that father of petitioner was a tenant of Wakf land, and he was not in possession of any Government land. Wakf Board carried out amendment to Muntakab after conducting detail enquiry. If petitioner is aggrieved by the same, as per Section 6(1) of the Wakf Act, he has to file a suit and writ petition is not maintainable. Third respondent, who is Muthawalli, and Wakf Board have filed O.S.No.126 of 2006 before the State Wakf Tribunal for eviction of Mohammed Muzafar, who is brother of petitioner and therefore, writ petition is maintainable. The counsel appearing for rival parties made their submissions in tune with the position in their pleadings. Third respondent, who is Muthawalli of subject Wakf, filed counter in similar terms. The petitioner’s counsel has not filed any reply affidavit denying counter averments. The only point that arises for consideration is whether the writ petition would lie when a suit is already filed before the State Wakf Tribunal for eviction of a person in occupation of Wakf property? It is not denied that petitioner is brother of Mohammed Muzafar, who is defendant in O.S.No.126 of 2006. It is also not denied that suit schedule property in the said suit is Municipal No.5-7-420/2, which is also subject matter of writ petition. It is also not denied that petitioner herein and defendant in the suit are sons of Abdul Khayum, who is allegedly a tenant of subject Wakf. When petitioner also claims right through his father and subject matter of property is same in suit filed by respondents 2 and 3 before the Wakf Tribunal and this writ petition, again a writ petition would not lie. It is well settled that simultaneously a suit and writ petition would not lie with respect to the same property. Secondly, there is a dispute whether petitioner’s father occupied Government Poramboke land or Wakf property. This has to be decided with reference to the Muntakab No.998, dated 24.02.1953 as amended by the impugned notification. Thirdly, when the impugned notification was issued on 29.12.1988, petitioner chose to file a writ petition challenging the same after lapse of twenty years. Therefore, this Court is not inclined to go into other questions raised by learned counsel for petitioner, with reference to the Slum Improvement Act. All these questions are to be raised – if it can be raised in law at this point of time; before learned Tribunal which is deciding O.S.No.126 of 2006. This writ petition is misconceived and deserves to be dismissed in limini. The writ petition is accordingly dismissed without any order as to costs. _______________ (V.V.S.RAO, J) .12.2008 pln