IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Special Appeal No. 59 of 2005 1. Kultar Singh 2. Gurdev Singh 3. Raksha Pal Singh 4. Gurmukha Singh 5. Gurmeet Singh All S/o Late Chandan Singh, R/o Village Daduwala, P.O. Jaspur, Tehsil Jaspur, District Udham Singh Nagar, Uttaranchal. ……… Appellants Versus 1. State of Uttaranchal through Secretary, Uttaranchal Wakf Board, Dehradun. 2. Chief Executive Officer, Uttaranchal Wakf Board, 69/4 Teg Bahadur Marg, Dehradun. 3. Abul Hafiz, Registered Mutwalli, Bus Malik Jaspur, District Udham Singh Nagar. 4. Sagir Ahmad S/o Moh. Hanif, Tehsil Jaspur, District Udham Singh Nagar. 5. Chief Executive Officer / Adhyaksha, Uttar Pradesh Sunni Central Wakf Board, Lucknow. ……….. Respondents Mr. A.D. Tripathi, Advocate for the appellants. Mr. Harendra Belwal , Brief Holder for respondent No. 1. Mr. T.A. Khan, Advocate for respondent No. 2. Mr. B.S. Parihar, Advocate for respondents Nos. 3 & 4. None for respondent No. 5. JUDGMENT Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble Rajesh Tandon, J. RAJEEV GUPTA, C.J. (Oral) The appellants have filed this Special Appeal against the impugned judgment dated 20.07.2005 passed in Writ Petition No. 743 of 2005 (M/S). 2. The petitioners had filed the writ petition for the following reliefs: “(1) Issue a writ, order or direction in the nature of certiorari to set aside the order dated 22.07.1982 and notification dated 24 Nov. 1984 Copies of whose are Annexure no. 3 to this writ petition. (2) Issue a writ, order or direction in the nature of mandamus directing the respondents to decide the application of the petitioner expeditiously and pass appropriate order according to law. (3) Issue any writ, order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. (4) Award the cost of the petition.” 3. Thus, the petitioners, in substance, were seeking quashing of the order dated 22.07.1982 and the notification dated 24.11.1984. 4. The learned Single Judge dismissed the writ petition by the following order: “By means of this writ petition, the petitioner has prayed for writ of Certiorari for quashing the impugned order dated 22.07.1982 passed by Assistant Wakf Commissioner, Nainital, contained in Annexure No. 3 to this writ petition. The question involved in this writ petition is relating to the disputed land which is highly disputed question of fact, therefore, it will be appropriate for the petitioner to seek the appropriate remedy available to him under the Wakf Act. Therefore, I am not inclined to entertain the writ petition. The writ petition is dismissed accordingly.” 5. Mr. A.D. Triapthi, the learned counsel for the appellants submitted that though the land in question is recorded as graveyard in the impugned order dated 22.07.1982, but, in fact, it is not a graveyard. Mr. B.S. Parihar, the learned counsel for respondents Nos. 3 & 4, on the other hand, emphatically contended that the land in question is a graveyard. 6. Thus, the matter involves a serious disputed question of fact as to whether the land in question is a graveyard or not. Such a seriously disputed question of fact cannot be resolved in a writ petition under Article 226 of the Constitution of India, as the same would require leading of evidence by the parties, which course is not permissible in the proceedings under Article 226 of the Constitution of India. 7. That apart, the petitioners were seeking quashing of the order dated 22.07.1982 and the notification dated 24.11.1984 in a writ petition filed in the year 2005 i.e. after 20 years of the passing of the order and the issuance of the notification. The writ petition, therefore, was liable to be dismissed on the ground of delay and latches also. 8. We, therefore, do not find any infirmity in the impugned judgment, whereby the appellant’s writ petition was dismissed. The Special Appeal, therefore, is liable to be dismissed and is hereby dismissed. 9. No order as to costs. (Rajesh Tandon, J.) (Rajeev Gupta, C.J.) 05.09.2006 05.09.2006 G