HON'BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE and HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY WRIT APPEAL No. 1054 OF2009 Dated: 10-11-2009 Between: Sri Mohd. Farooq Khalidi ... APPELLANT AND Government of Andhra Pradesh, rep., by its Principal Secretary, (Revenue), Secretariat, Hyderabad and four others ... RESPONDENTS THE HON’BLE THE CHIEF JUSTICE SRI ANIL R. DAVE AND THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY WRIT APPEAL No. 1054 OF 2009 JUDGEMENT: (per Sri C.V. Nagarjuna Reddy, J) The appellant who claims to be interested in a purported wakf property filed Writ Petition No. 8940 of 2009 for a mandamus to declare gift settlement deeds dated 15-04-2008 and 19-04-2008 executed by respondent No.4 in favour of respondent No.5 as illegal and invalid. The said writ petition was dismissed by the learned single Judge giving liberty to the appellant to pursue appropriate remedies before the competent forum. We have heard Sri Abid Ali, learned counsel for the appellant, Sri M.A.K. Mukheed, learned Standing Counsel for respondent No.3 and Sri Mirza Nisar Ahmed Baig, learned counsel for respondent Nos.4 and 5 and perused the record. While it is the case of the appellant that the property in dispute belongs to wakf and respondent No.4 who is the Mutawalli of the wakf unauthorisedly and fraudulently gifted the property in favour of respondent No.5 who is no other than his wife, respondent No.4 pleaded that the property which was gifted by him in favour of his wife is not a wakf property and that it is his private property. In the counter affidavit filed by respondent No.3 in this writ appeal, it has been stated in paragraph 5 as under: “In reply to averments made in Ground No.3 of the Writ Appeal, it is submitted that, premises No.18-11-39 comprising Dargah, Mosque and Graveyard is a Wakf by it user and the Respondent No.5 herein has no power to alienate the property without the prior permission and approval of the Board. Respondent No.3 herein and this respondent has not issued any permission granting approval to the Respondent No.5 herein to alienate the Wakf property under subject matter as such any transaction affected without the prior approval of the Board is null and void by virtue of Sec.51 of the Wakf Act, 1995. Further, the Mutawalli is not competent to alienate the property. He is only the manager to manage the Wakf in the total spirit of the Wakf Act, 1995.” The appellant filed notification published in the Andhra Pradesh Gazette, dated 16-05-1985, wherein the property is notified as under: “Name and situation of Wakf sunni or Shiadargah Hzt. Baikas Nawaz Khaja Shah Razaed, Mohd. Badeshah Mohiuddin, Wajadi Shamsith Mosque and Graveyard, area 579.5 Sq. yds.(S) 58.” From the above mentioned notification, it is evident that the property which is actually notified is mosque, graveyard and area of 579.5 square yards. Respondent Nos.4 and 5 have taken the stand that, even according to the notification, what was notified was only 579.5 square yards with mosque and graveyard and that the property which was gifted by respondent No.4 in favour of respondent No.5 was the one which is other than the above mentioned notified property. However, as noted earlier, it is the case of respondent No.3 that while a part of the property was notified as wakf property, the rest of the property including the one which was gifted by respondent No.4 in favour of respondent No.5 is wakf by user and, therefore, respondent No.4 had no authority to settle the property in favour of his wife. In our considered view, this serious disputed question of fact cannot be decided by this Court in a writ proceedings. The appropriate remedy for the appellant lies in his approaching the Wakf Tribunal under Section 83 (2) of the Wakf Act, 1995 (for short, ‘the Act’) by raising the plea that the property in dispute is a wakf property. It is for the Tribunal to decide on the basis of the evidence to be adduced by the appellant and respondent Nos.4 and 5, above mentioned question as to the nature of the property. The writ appeal is accordingly disposed of with liberty to the appellant to approach the Wakf Tribunal to seek appropriate relief as observed above. The appellant is also entitled to seek such interim relief as is required, pending his application to be filed before the Tribunal. We also make it clear that having regard to the stand taken by respondent No.3 that the property in dispute is a wakf by user, the Wakf Board is entitled to initiate appropriate action in accordance with the provisions of the Act to safeguard the alleged wakf property. As a sequel to the disposal of the appeal, WAMP Nos.2100, 2522 and 2745 of 2009, filed by the appellant, are disposed of as infructuous. ANIL R. DAVE, CJ C.V. NAGARJUNA REDDY, J 10-11-2009 ks