IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE 6th DAY OF SEPTEMBER, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE RAJA ELANGO WRIT PETITION No.5700 of 2009 Between: Mohsin Bin Hussain Al Kasary. … Petitioner And The State of A.P., rep. By Chief Secretary to Govt. of A.P. and others … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO WRIT PETITION No.5700 OF 2009 ORDER: - (Per Hon’ble Sri Justice A.GOPAL REDDY) Mazlumeen-e-Ummatay Mohammediya, a Muslim Organisation submitted a representation on 19.09.2008 to the 2nd respondent-the Principal Secretary, Minorities Department, Government of A.P., for protection of Wakf property admeasuring Acs.2131-38 guntas in S.No.99/1 situated at Mamidipally village, Saroornagar Mandal, R.R.District; for removal of the 3rd respondent-The A.P.State Wakf Board from Mutawalliship; and for appointment of Mutawalli, stating that continuation of the Wakf Board as Mutawalli of the said Wakf property is prejudicial to the interest of the Wakfs and the State Government is the appropriate authority to pass necessary orders for removing the 3rd respondent from Mutawalliship of the said land. Since the petitioner is a President of registered political party and interested in the protection of the Wakf property, they are offering their services as Mutawalli of the Wakf to manage the property in the above survey number after removal of the Wakf Board from Mutawalliship and the A.P.Industries Infrastructure Corporation (APIIC) illegally allotted the major portion of the Wakf land to various companies and hectic construction activities are being carried on by them in the property belongs to the Wakf and the said activities have to be suspended and necessary directions have to be issued to the APIIC and its allottees to suspend all construction activities and to handover the possession of the said Wakf land to the petitioner as Mutawalli or any suitable Mutawalli capable of unbiased protection of the said Wakf land. 2. Since the said representation has not evoked any response, the present writ petition is filed in the form of Public Interest Litigation, contending that the petitioner is a founder and president of registered political party-“Mazlumeen-e-Ummatay Mohammediya”, who contested as an independent candidate for the Member of Legislative Assembly from Karvan Constituency in 2003 bye election and also in the year 2004 General election. He also contested as a member of parliament in the Hyderabad Constituency and Karvan Assembly, but was not successful. The land admeasuring Acs.2131-38 guntas in S.No.99/1 situated at Mamidipally village is a notified Wakf property vide gazette notification No.HSE 49 # 6A, dated 09.02.1989. The 3rd respondent-A.P.State Wakf Board, assumed direct management of the said Wakf property from the date of its notification and illegally continued to retain it under its direct management without giving any mandatory notification under Section 65(1) of the Wakf Act. Therefore, the very assumption of the direct management of the Wakf property by the 3rd respondent without complying the mandatory provision under Section 65(1) of the Act is illegal and not appointing any Mutawalli after obtaining the management of the said property for more than five years, is contrary to the provisions of the Wakf Act. The 3rd respondent, who continues to be in possession of the Wakf property on the self proclamation of the Mutawalli remained a mute spectator against the illegal alienation of the Wakf property by the State Government in favour of the 4th respondent-The Andhra Pradesh Industrial Infrastructure Corporation (APIIC) in G.O.Ms.No.271, Industries & Commerce Department, who is not safeguarding the interest of the Wakf property. It is further submitted that an extent of 900 acres out of the said Wakf land was encroached for the purpose of Shamshabad airport without there being any allotment in its favour or giving alternative land to the Wakf board. Therefore, a representation has been made to remove the 3rd respondent from Mutawalliship and appoint any suitable person as Mutawalli to protect the said property. 3. The 2nd respondent filed a counter affidavit admitting that as per the notification, dated 09.02.1989, the property in question in survey No.99/1 admeasuring Acs.2131-38 guntas is a Wakf property and the Wakf board is notified as Mutawalli of the said Wakf institution. As per the report of the District Collector, the entire land has been acquired under the provisions of the Hyderabad Land Acquisition Act (Act No.IX of 1309 fasli) and it was subject matter of challenge before the courts and ultimately as per the orders of the Hon’ble Supreme Court in Civil Appeal No.246 of 1960, dated 22.04.1962, the said property deemed to have been vested in the Government of A.P., as on 28.02.1956, on payment of compensation of Rs.4.00 lakhs. Subsequently, the said property was transferred by the Government to the Director of Animal Husbandry for establishment of a large scale seed breeding farm and the possession of the land was handed over to Animal Husbandry Department on 06.08.1966 through G.O.Ms.No.1489, dated 22.01.1966 and thereafter the said land was taken back by the Government and it allotted Acs.1051.34 to the International Airport at Shamshabad, Acs.981.32 to the APIIC and Acs.98.12 to the Roads, sports, residential houses, etc. It is denied that the Wakf Board has assumed direct management of the said Wakf property from the date of its gazette notification dated 09.02.1989 and illegally continuing to retain it under its direct management. It is submitted that before the survey of the Wakf institutions of the State was undertaken by the Survey Commissioner under the Wakf Act, the Wakf board is Mutawali of this institution and continued even after the publication of the gazette. As per Section 32 of the Wakf Act all the said institutions will function under the general superintendence of the Wakf board. There is no provision in the Wakf Act, which empowers the State Government to directly supervise any Wakf institution or give any direction with respect to any individual Wakf institution nor it can interfere directly in the affairs of any Wakf institution. 4. The 3rd respondent-A.P.State Wakf Board filed a counter affidavit stating that the property, which is the subject matter, was surveyed by the Commissioner of Wakf in the late 60s and published in the Gazette in the year 1989 under the towliath of A.P.State Wakf board and continuing under the towalith and management of the Wakf Board as such application of Section 65(1) of the Act is unwarranted and irrelevant. The property, which is the subject matter, is a Wakf under the towliath of Wakf board and the same was subject matter of litigation in W.P.No.653 of 1987, where this Court held that the Wakf board shall be entitled to be in possession of and management of Dargah and it is equally open to the Wakf board to make such arrangement for its administration and conduct of its affairs as it thinks proper in the circumstances. It is further submitted that the Wakf board is managing the institution in the capacity of Mutawalli and pursuing the matters with the district authorities regarding the land attached to the institution and with the revenue authorities as well as the Government. The Principal Secretary to Government, Minorities Welfare Wakf Department in reply to the L.C.Q.No.98 (Starred) informed the claim of the Wakf board to the extent of Acs.2131-38 guntas in Sy.No.99/1 and land admeasuring Acs.58.03 guntas in other survey numbers and also putforth the stand of the Collector, Rangareddy District with reference to the above lands and a meeting was convened on 22.01.2007 with regard to the Collector’s claim regarding payment of Rs.4.00 lakhs as compensation. It was suitably informed by the Secretary, H.E.H. the Nizam in his letter, dated 31.05.2007, requesting to restore the land in its original form, as the said land has been classified as Mafi Inam in the revenue records. The Government has released an extent of Acs.50.00 of land and the board has accepted the same and pursuing the matter with the Government to restore the remaining land. 5. From the stand taken by the State Government and the Wakf Board in their respective counters as referred to above, there is a dispute with regard to the property notified as Wakf between the Government and the Wakf board, whereas the Government states that the District Collector made a claim to the said property that it was acquired under the Hyderabad Land Acquisition Act, and necessary compensation of Rs.4.00 lakhs have already been paid and the land was allotted to Animal Husbandry Department on 06.08.1966 through G.O.Ms.No.1489, dated 22.01.1966 and later the land was taken back by the Government and the same was allotted to various organizations as referred to above. When the Wakf board has already been pursuing the matter with the State Government and allowing its claim over the property and in turn Acs.50.00 were given possession to the Wakf board, as per the counter allegations of the Wakf board, where the respective claims have to be resolved by the State Government. If the parties are not agreeable to the settlement, it is always open to the Wakf board to move the Wakf tribunal or before the competent civil court to protect its right. 6. Since disputed questions of fact have been involved namely, when the District Collector claims that the entire land has been acquired under the provisions of Hyderabad Land Acquisition Act by publishing the notification and declaration under the Hyderabad Gazette No.1/B in the year 1956 and when the matter was carried to the Hon’ble Supreme Court in Civil Appeal No.246 of 1990, dated 22.04.1962 where the Hon’ble Supreme Court held that the said property has been deemed to have been vested in the Government of A.P. as on 28.02.1956 on payment of compensation of Rs.4,00,000/- under the Hyderabad Land Acquisition Act, whether by the subsequent notification notifying the said property as a Wakf property the State Government will loose its right in the property, is a matter which can be effectively resolved by the competent civil court or the Wakf tribunal as the case may be, this Court in the form of public interest litigation cannot enquire into the title dispute with regard to the said property. 7. The writ petition is misconceived and is accordingly dismissed. No costs. ________________ A.GOPAL REDDY, J _______________ RAJA ELANGO, J 6th September 2010 lmv