THE HON'BLE SRI JUSTICE V.V.S.RAO
WRIT PETITION No.4202 OF 2006
DATED 14th SEPTEMBER, 2006
BETWEEN
Smt Shakeela Jubeda
... Petitioner
and
The Chief Executive Officer, A.P.State Wakf Board,
Haj House, Nampally, Hyderabad and others.
... Respondents
THE HON'BLE SRI JUSTICE V.V.S.RAO
WRIT PETITION No.4202 OF 2006
ORDER:
The petitioner is resident of New Paloncha town in Khammam District. She statedly has a house site admeasuring 804 square yards in survey No.708 at New Paloncha. On which, her father-in-law late Pasha Bagan allegedly constructed a house in 1967 after obtaining permission from Gram Panchayat. The petitioner also states that the Government of Andhra Pradesh issued a notification under Section 4(3) of the Wakf Act, 1954 (Wakf Act, for brevity) and published the same in A.P.Gazette, dated 25.01.1990 notifying the graveyard in survey No.697 admeasuring Acs.4.31 guntas at Old Paloncha. She alleges that the land in survey No.708 admeasuring about Acs.6.00 is Government land, which was occupied by number of persons for constructing houses and that the land in survey No.708 is not a wakf land, which was not notified. The Chief Executive Officer, first respondent herein, however, issued notices, dated 07.07.2005, under Section 54(1) of the Wakf Act, 1995 (1995 Act, for brevity) calling upon the petitioner as to why the order to remove encroachment should not made against her under Section 54(3) of the 1995 Act. The petitioner submitted explanation. Thereafter, on 15/28.12.2005 first respondent issued the impugned order ordering the petitioner to remove the encroachment within fifteen days from the date of receipt of such order. This order is assailed in the writ petition.
The first respondent filed counter affidavit. It is stated that the graveyard covered in Survey Commissioner's Report, dated 11.10.1969 under S.F.No.90 was wrongly recorded as graveyard in survey No.697 admeasuring Acs.4.31 guntas, which was notified as such in the Gazette, dated 25.01.1990 vide Sl.No.10226. On 11.10.2004, the Inspector Auditor (Wakf), Khammam sent a report. The first respondent, therefore, deputed Surveyor for demarcation of the encroachments in the land comprised in survey numbers, which were notified. The survey staff verified the office record from the fourth respondent and found that land in survey No.708 was recorded as Sarkari/Muslim graveyard admeasuring Acs.6.00. The allegation that only an extent of Acs.2.26 guntas is Muslim graveyard is denied stating that entire extent of Acs.6.00 guntas in survey No.708 is Muslim graveyard and that PPB was issued in 1980 in the name of Muslim Wakf Board District Committee, Khammam. Having come to know this, A.P.Wakf Board has proposed an errata in Column No.3 of the notification to correct survey No.697 admeasuring Acs.4.31 guntas as survey No.708 admeasuring Acs.7.35 guntas including an extent of Acs.1.35 guntas as Abadi. The same errata has been published in the A.P.Gazette (Part-II) No.41, dated 13.10.2005. The writ petition is also opposed contending that if the petitioner disputes that the property is a wakf property or not, the remedy lies in approaching the State Wakf Tribunal. The petitioner has not filed any reply affidavit denying counter averments.
Learned counsel for the petitioner vehemently contends that the land in possession of the petitioner with a house thereon in survey No.708 is not wakf land. Secondly, he would urge that the first respondent has no jurisdiction to invoke Section 54 of the 1995 Act when the land is not notified as wakf land. He relies on the decision of a learned single Judge of this Court in Hameed Ali v A.P.State Wakf [1] Board in support of the contention that the Chief Executive Officer of the Wakf Board has no jurisdiction in the land, which is not notified as wakf land. The learned standing counsel for A.P.State Wakf Board submits that when a notification is issued and published under Section 5 of the 1995 Act declaring the property as wakf, anybody disputing such notification has to seek remedy under Section 6 read with Section 83(1) of the 1995 Act before the State Wakf Tribunal. Therefore, the writ petition is not maintainable. Learned counsel brought to the notice of this Court that the Judgment of learned single Judge in Hameed Ali (supra) has been overruled by Division Bench (to which I was a member) in Allauddin Charities and Zakath Wakf v [2] Hameed Ali . He also brought to the notice of this Court that two Division Benches of this Court in M.Bikshapathi v Government of [3] Andhra Pradesh (to which I was a member) and Syed Muneer v [4] Chief Executive Officer, A.P.State Wakf Board held that when there is a dispute regarding the nature of the property or nature of the wakf, remedy lies only before the Wakf Tribunal.
After perusing the Judgments cited by the learned counsel for the rival parties and considering the submissions made by them, this Court is of considered opinion that the competency of the Chief Executive Officer to initiate action under Section 54 of the Wakf Act or whether or not the notification issued by the Government of Andhra Pradesh read with the errata published by any notification is final or not need not be decided at this stage. This Court in all the decisions has consistently taken the view that whatever be the disputes - the nature of the property or whether or not it is a wakf has to seek the remedy by way of an application/suit before the duly constituted State Wakf Tribunal under Section 83(1) of the 1995 Act. These questions cannot be decided in a summary proceeding.
In M.Bikshapathi v Government of Andhra Pradesh (supra), the Division Bench observed as under.
... the jurisdiction of the Wakf Tribunal cannot be limited by reading Section 6 alone providing for the decision to determine the nature of the wakf property i.e., to the effect whether it is a wakf property or not; whether it is a Shia Wakf or Sunni Wakf and who is the interested person who can institute a suit. Section 6 further specifies that the person interested shall, in relation to the property, include every person who though not interested in the wakf concerned, is interested in such property. We are of the considered view that reading both the sections together and permitting them to operate in their totality, it is within the jurisdiction of the Tribunal to determine whether the wakf property has been rightly leased or wrongly leased or any questions relating to wakf property.
In Allauddin Charities and Zakath Wakf (supra), the Division Bench of this Court observed as under.
Under sub-section (5) of Section 83, the Tribunal constituted under sub-section (1) of Section 83 shall be deemed to be a civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure while trying a suit or executing a decree or order. The jurisdiction of the Civil Court is specifically barred under Section 85 of the Act. Therefore, when the Tribunal has been conferred with the power to determine any dispute, question or other matter relating to a Wakf or Wakf property under the Act and acts as a Civil Court for all purposes, this Court, in exercise of the jurisdiction under Article 226 of the Constitution, cannot permit a party to bypass such statutory remedy and assign itself the role of statutory authority or Tribunal by dealing with the disputed questions of fact or title. It is only after the issue or dispute is determined by the Tribunal at the first instance, the High Court, in exercise of the power under the proviso to sub-section (9) of Section 83 of the Act gets jurisdiction and can go into the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order it may think fit. We are, therefore, of the view that unless the party aggrieved of the orders of the CEO has availed of the alternative remedy available to him under the Statute and the Tribunal has determined the issue or dispute or the nature of the property as provided under the provisions of the Act, this Court, cannot go into question of validity of the orders passed by the Chief Executive Officer.
The present writ petition is filed by the petitioner presumably placing strong reliance on the Judgment of the learned single Judge in Hameed Ali (supra), which has been reversed by the Division Bench. Therefore, this Court is not bound by the decision therein. The petitioner, if so advised, may approach the Wakf Tribunal, by filing appropriate application. If the said application is in accordance with law, the learned Wakf Tribunal may entertain the same and pass appropriate order. The relief claimed in this writ petition cannot be granted to the petitioner.
The writ petition is accordingly dismissed. No costs.
______________ (V.V.S.RAO,J) 14.09.2006.
pln [1] 2001 (4) ALD 594 [2] 2002 (1) ALD 67 (DB) [3] 1999 (6) ALD 270 (DB) [4] 2001 (4) ALD 430 = 2001 (2) LS 321