IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE P.V.SANJAY KUMAR WRIT PETITION NO : 265 of 2001 Between: 1 Shaik Baba S/o Md. Saab, R/o Elvi Village, Tanoor Mandal, Adilabad District. 2 Shaik Maqdoom S/o Md. Saab, R/o Elvi Village, Tanoor Mandal, Adilabad District. 3 Shaik Moula Miyya S/o Md. Saab, R/o Elvi Village, Tanoor Mandal, Adilabad District. 4 Shaik Sarwar Miyya S/o Md. Saab, R/o Elvi Village, Tanoor Mandal, Adilabad District. ..... PETITIONERS AND 1 The Chief Executive Officer, A.P. State Wakf Board Opp. Public Garden, Nampally Road, Hyderabad. 2 The District Collector, Adilabad 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 in the nature Writ of Mandamus declaring the proceedings No. C1/3342/2000 dt: 16-9- 2000 issued by the 2nd Respondent as illegal, arbitrary and violative of principles of natural justice and consequently set aside the same Counsel for the Petitioner: MR. V.RAVINDER RAO Counsel for the Respondent No.1 : MR. S.M.SUBHANI, Standing Counsel for the Wakf Board. Counsel for the 2nd respondent : -- The Court made the following : ORDER: The present Writ Petition is ﬁled challenging the proceedings No.C1/3342/2000 dated 16-09-2000 issued by the District Collector, the 2nd respondent in the Writ Petition, seeking to evict the petitioners from the agricultural land in Survey No.109/2 of Umri village, Tanoor Mandal, Adilabad District. 2. The petitioners stated that they possessed the subject land admeasuring Ac.8.03 gts. In S.No.109/2 of Umri village, Tanoor Mandal, Adilabad District under the registered sale deed being document No.181/88 dated 9-2-1988. The said land is said to be an inam land and was purchased by them from the inamdar who was competent to sell the same. The petitioners claimed that they had been in possession of the said land since the date of their purchase and had been raising crops thereupon. While so, they received the impugned order dated 16-09-2000 passed by the 2nd respondent on 26-12-2000 directing them to vacate the said land and hand over the possession of the same to the Inspector Auditor, Wakf Board, Adilibad within 30 days. The said order is under challenge in the present Writ Petition and is attacked on the ground that the same is violative of the statutory procedure laid down in Section 52 of the Wakf Act, 1995. The petitioners claimed that they were neither given any notice nor was there any enquiry conducted into the matter as required under the statutory provisions and accordingly, the order is unsustainable in law. 3. The Chief Executive Oﬃcer, A.P. State Wakf Board, Hyderabad, the 1st respondent in the Writ Petition, ﬁled a Counter stating that the subject land admeasuring Ac.8.03 gts. in S.No.109/2 belonged to Mosque Kubeer situated at Umri Village, Tanur Mandal, Adilabad District, which was a registered wakf as per the publication in A.P. Gazette dated 4-1- 1990. It is stated that on the receipt of a report from the Revenue Divisional Oﬃcer, Nirmal informing that the subject land had been illegally sold away, the A.P. State Wakf Board issued a letter dated 11.7.2000 to the District Collector, Adilabad District to obtain the possession of the subject land from the illegal purchasers. It is in this background, the impugned proceedings No.C1/3344/2000 dated 16-09-2000, seeking to evict the petitioners from the subject land, were issued. The 2nd respondent denied that there was any illegality in the said action and relied upon the fact that the petitioners themselves admitted their purchase of inam land. Accordingly, the said lands, having been subjected to illegal and unlawful sale, could be recovered by exercising the powers under the provisions of Section 52 (2) of the Act. It is also stated that the petitioners have an alternative remedy under Section 52 (4) of the Act, which permits an appeal to the Tribunal against the order of the Collector under Section 52 (2) of the Act. It is, stated, in summation, that the Writ Petition is devoid of merits and the 1 st respondent prayed for its dismissal. 4. Heard Sri V.Ravinder Rao, learned counsel for the petitioners and Sri S.M.Subhani, learned counsel appearing for the 1st respondent. 5. Section 51 of the Act renders void the sale of wakf property without the prior sanction of the Wakf Board. However, Section 52 of the Act, while dealing with the issue of recovering such wakf property, which has been subjected to an illegal sale as identiﬁed under Section 51, delineates the procedure which has to be followed. 6. Section 52 of the Act reads as hereunder: Section 52 (1): “If the Board is satisﬁed, after making any inquiry in such manner as may be prescribed, that any immovable property of a Wakf entered as such in the register of Wakf maintained under Section 36, has been transferred without the previous sanction of the Board in contravention of the provisions of Section 51, it may send a requisition to the Collector within whose jurisdiction the property is situated to obtain and deliver possession of the property to it.” Section 52 (2): “On receipt of a requisition under sub- section (1), the Collector shall pass an order directing the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order.”. Section 52 (3): “Every order passed under sub-section (2) shall be served- (a) by giving or tendering the order, or by sending it by post to the person for whom it is intended; or (b) if such person cannot be found, by aﬃxing the order on some conspicuous part of his last known place of abode or business, or by giving or tendering the order to some adult male member or servant of his family or by causing it to be aﬃxed on some conspicuous part of the property to which it relates: Provided that where the person on whom the order is to be served, is a minor, service upon his guardian or upon any adult male member or servant of his family shall be deemed to be the service upon the minor.” Section 52 (4). “Any person aggrieved by the order of the Collector under sub-section (2) may, within a period of thirty days from the date of the service of the order, prefer an appeal to the Tribunal within whose jurisdiction the property is situated and the decision of the Tribunal on such appeal shall be final.” Section 52 (5). “Where an order passed under sub- section (2) has not been complied with and the time for appealing against such order has expired without an appeal having been preferred or the appeal, if any, preferred within that time has been dismissed, the Court shall obtain possession of the property in respect of which the order has been made, using such force, if any, as may be necessary for the purpose and deliver it to the Board.” Section 52 (6). “In exercising his functions under this Section, the Collector shall be guided by such rules as may be provided by regulations.” 7. Further the A.P. Wakf Rules formulated under Section 109 (1) of the Wakf Act, 1995, contemplate that the procedure under Rule 21 is to be adopted for recovery of the Wakf property under Section 52 (1) of the Act. 8. Rule 21 reads as follows: (a) If the Board is informed by any person, by means of an application supported by an aﬃdavit or by any of its subordinate oﬃcer that any immovable property of a wakf entered as such in the register of wakf has been transferred in contravention of Sec.3-A or has been registered unauthorisedly occupied or encroached, the Board shall cause a notice to be issued by registered post to the person occupying the property to hand it over to the Board or to any oﬃcer authorized by it within ﬁfteen days from the date of service of the notice. A copy of the notice shall be aﬃxed on the Notice Board of the Oﬃce of the Board and also in any conspicuous place in which the property is situated. Such aﬃxture shall be deemed to be suﬃcient service to all concerned. The Board shall also issue a notice in the manner stated above to the person who has wrongfully alienated the wakf property in question. (b) The notice issued under Sub-rule (a) shall contain suﬃcient details of the said property and shall allow a week’s time within which objections, if any, may be filed. (c) Any objection ﬁled within the time allowed shall be inquired into by the Board . (d) If the Board is satisﬁed after such inquiry that the property is illegally occupied, the Board shall issue a requisition to the Collector concerned in Form VI to obtain and deliver possession of the property to it. (e) The Collector shall in the manner provided in sub-sections (2), (3) and (5) of Section 36-B obtain the possession of the property and deliver it to the Board or any officer authorized by it in this behalf. (f) If while taking possession of such immovable property, the person in possession bound by the order or any other person claiming under him does not aﬀord free access, the Collector or any oﬃcer duly authorized by him in this behalf shall remove or open any lock or bolt or break open any door or do any other act necessary for putting the Board in possession of the property. The Collector shall get the occupant evicted, and if necessary, remove him by force, and deliver vacant possession of the property to the Board or any officer authorized by it in this behalf. 9. The above statutory provisions make it clear that the Wakf Board should be satisﬁed, after making an enquiry in the manner prescribed, as a condition precedent that immovable wakf property has been transferred in contravention of Section 51, before sending the requisition to the Collector for obtaining and delivering the possession of the property to the Wakf. 10. The Rule framed in this regard, being Rule 21, categorically states that the Board shall cause a notice to be issued by Registered Post to the person occupying the property which is illegally transferred to him in violation of Section 51, calling upon him to handover the same to the Board within 15 days. The said notice is also required to allow an opportunity to the occupier to file his objections and it is only after the consideration of such objections and after an enquiry in this regard facilitating the Wakf Board to satisfy itself that the property is illegally occupied, the Board is empowered to make a requisition to the Collector. 11. It is the complaint of the petitioners in the present Writ Petition that this procedure has not been followed by the Wakf Board. Basing upon the report of the Revenue Divisional Oﬃcer, Bhainsa, Nirmal, which in turn was based upon the application of the petitioners themselves for grant of Occupancy Certiﬁcates, the Wakf Board made a requisition to the 2nd respondent without causing issuance of notice to the petitioners and without holding any enquiry into the matter as enjoined by the statutory procedure referred hereinabove. The learned Counsel therefore submits that the order, having been passed in violation of the statutory procedure, is unsustainable in law and is liable to be set aside. 12. Sri S.M.Subhani, learned counsel for the 1st respondent, strenuously contended that the petitioners are aﬀorded an alternative remedy under Section 52 (4) of the Act and they must approach the Wakf Tribunal constituted under Section 83 of the Act by way of an appeal. He would submit that under Section 83 (9) proviso, the petitioner is entitled to approach this Court by way of a revision against the order passed by the Tribunal. The petitioners cannot circumvent this procedure and approach this Court directly against the order passed by the 2nd respondent in exercise of his powers under Section 52 (2) of the Act. He relied upon the judgments of this Court in T. SHIVALINGAM v. A.P. WAKF TRIBUNAL, PRESIDING OFFICER, HYDERABAD AND OTHERS ([1]), M. BIKSHAPATHI v. GOVERNMENT OF ANDHRA PRADESH AND OTHERS ([2]) and ALLAUDDIN CHARITIES AND ZAKATH WAKF v. HAMEED ALI AND OTHERS ([3]) in support of his contention that the availability of an alternative remedy was a bar to the exercise of jurisdiction by this Court under Article 226 of the Constitution of India. 13. The Judgment of a learned Judge of this Court in T.SHIVALINGAM’s case pertained to the maintainability of a suit before the Wakf Tribunal in respect of wakf property. A Writ of Prohibition was sought on the ground that the Wakf Tribunal did not have the jurisdiction to entertain the suit for eviction. The learned Judge negatived the said contention and held, upon analysis of the scheme of the Act, that Section 85 of the Act barred the jurisdiction of the Civil Court and vested the power to decide disputes with regard to Wakf property only in the Tribunal constituted under Section 83 and that it would be the said Tribunal alone which would have the jurisdiction to entertain and decide the suit. The said case did not pertain to the issue of an alternative remedy being available. On the other hand, it dealt with a complete lack of jurisdiction in the Civil Court to deal with Wakf properties in view of Section 85 of the Act. The judgment is therefore inapplicable to the present case. 14. In BIKSHAPATHI’s case, a Division Bench of this Court held that the Wakf Tribunal alone can come to a conclusion whether a particular property was Wakf property. The Division Bench also held that it would be within the jurisdiction of the Tribunal to determine whether the Wakf property has been correctly leased and any other issue pertaining to the said lease would be within the sale jurisdiction of the Tribunal. Therefore, the said case turned upon the merits of the dispute, which was sought to be canvassed by way of a Writ Petition and this Court rightly held that the Wakf Tribunal, constituted under Section 83 of the Act, would be the competent authority to decide such a dispute. The said case did not turn upon any statutory procedural irregularities or improprieties by the authorities in exercise of the jurisdiction under the Act or the Rules framed thereunder. 15. The 3rd judgment relied upon by the learned counsel for the 1st respondent is that of a Division Bench of this Court in ALLAUDDIN CHARITIES’s case. In the said case, the Court was concerned with the issuance of a writ of prohibition and stated three conditions which needed to be satisﬁed in that regard. The Division Bench referred to the fact that the jurisdiction of the Civil Court was barred under Section 85 of the Act and that the Tribunal constituted under Section 83 had been conferred with power to determine any dispute, question or other matter relating to the Wakf or Wakf property and acted as a Civil Court for all purposes. It is in the background of this observation, the Division Bench held that a party could not be permitted to by-pass the said statutory remedy and approach this Court by way of a Writ Petition under Article 226 of the Constitution of India, requiring it to deal with disputed questions of fact or title. It is relevant to note that in this case also, the issue was with regard to the merits of the case and did not turn upon any statutory impropriety or irregularity. 16. The facts of the present case, on the other hand, clearly demonstrate that there was a violation by the 1st respondent in so far as the provisions of Sections 52 (1) and 52(6) of the Act and Rule 21 of the A.P. Wakf Rules are concerned. The 1st respondent admittedly did not undertake any enquiry and did not cause any notice to be served upon the petitioners prior to sending the requisition to the 2nd respondent. This action inevitably demonstrates violation of the statutory procedure envisaged under the Act and the Rules. Having violated the mandatory statutory provisions, it is not open to the 1st respondent at this stage to state that the petitioners have an alternative remedy under the very same statute and that they cannot approach this Court by way of the present Writ Petition. 17. The jurisdiction of this Court under Article 226 of the Constitution of India is not barred in a given case when it is manifested that the procedure laid down by law has not been followed while visiting civil consequences upon the individuals concerned. In the present case, the petitioners have been deprived of the opportunity which was guaranteed to them under the provisions of the statute and the Rules and consequently, such an illegal exercise on the part of the authorities cries out to be interfered with by this Court, in exercise of its jurisdiction under Article 226 of the Constitution of India. The decisions cited by the learned counsel for the 1st respondent are wholly inapplicable to the facts of the present case. In any event, the plea of an alternative remedy being a bar to the jurisdiction of this Court, cannot be reduced to a strait jacket formula to be applied evenly in all cases, irrespective of the facts made out and the illegality complained of therein. 18. This Court is therefore of the considered opinion that the availability of the remedy of an appeal under Section 52 (4) of the Act does not preclude the petitioners from approaching this Court by way of the present Writ Petition. 19. In the light of the fact that there is no rebuttal on facts, with regard to the violation of the statutory procedure as laid down in Section 52 (1) of the Act as well as Rule 21 of the Rules, it is clear that the impugned action initiated under the proceedings dated 16-09-2000 is unsustainable in law and accordingly, the same is set aside. Needless to state, it is always open to the Respondents to take appropriate action in the matter as deemed ﬁt, after following the procedure laid down by law, both in letter and spirit. 20. The Writ Petition is allowed. There shall be no order as to costs. ___________________________ Justice P.V.SANJAY KUMAR Dated 17th September, 2008. Dvs HONOURABLE SRI JUSTICE P.V.SANJAY KUMAR WRIT PETITION No.265 OF 2001 Dated 17th September, 2008 [1] 1999 (3) ALD 646 [2] 1999 (6) ALD 270 (DB) [3] 2002 (1) ALD 67 (DB)