Telangana High Court
Syed Alamdar Hussain vs The State Of Telangna on 26 April, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 1215 OF 2019
ORDER:
Action of Respondents 3 and 4 - Waqf Board and Station House Officer in interfering with the construction activities of petitioner over House bearing Municipal No. 22-3-420 (old No. 1107) admeasuring 180 square yards situated at Kaman Elchi Baig, near Mandi Mir Alam, Hyderabad is challenged in this Writ Petition.
2. Petitioner is stated to have purchased the above mentioned property for a valid sale consideration on 03.06.2015 from Iqbal Chand Vigg S/o Late Nirannjan Lal Vigg and since then has been in possession and enjoyment of the same. After obtaining permission from Greater Hyderabad Municipal Corporation on 30.06.2018, petitioner had been proceeding with construction of house. While so, Respondents 3 and 4 started interfering with construction activities and threatened to stop construction claiming the property to be of the 3rd respondent - Waqf Board. Petitioner is stated to have produced link documents along with sale deed.
It is stated that before Respondents 3 and 4, petitioner explained that subject house property was never endowed as waqf as it is in possession and enjoyment of private 2 persons and they are paying municipal tax, electricity bill and water bill to establish the property in occupation of the private persons, but the 4th respondent did not heed his request and stopped construction activities. Hence, petitioner is before this Court.
According to petitioner, the 4th respondent ought to have verified the documents produced by the 3rd respondent. Survey was conducted at the behest of Mirza Abed Ali Baig who has nothing to do with the subject property. It is contended that Respondents 3 and 4 failed to see that subject property was endowed by the person who did not have right. The father of person who endowed the property lost his rent control case as per the judgment in R.A.No. 946 of 1971 on the file of the Chief Judge, City Small Causes Court, Hyderabad, hence, the survey report which was the basis for issuing Gazette is bad in law.
3. While admitting the Writ Petition, vide order dated 18.02.2019, this Court directed that if petitioner is in possession of subject property, he shall not be dispossessed without following the provisions of the Waqf Act, 1995. Thereafter, on 01.12.2022, it was observed that 'the survey report is in respect of house No. 4-3-419, but instead of notifying the said property, respondents have notified the same 3 as house No. 4-3-420 in the impugned Gazette Notification No. 11-A dated 16.03.1989, hence, directed the learned Standing Counsel to get specific instructions. On 07.12.2022, learned Standing Counsel represented that record room of Waqf Board is under lock and as of now, the record placed before the Court by petitioner is only available. In those circumstances, in I.A.No. 2 of 219, pending further orders, interim direction was granted.
4. Counter-affidavit was filed on behalf of the Waqf Board, wherein it was stated that Iqbal Chand Wig had no title to execute any sale deed favouring petitioner in respect of subject house. It is stated that construction permission was obtained by suppressing the facts and the same is liable to be set aside and not binding on the Waqf Board.
It is stated that Wakf Institution known as Alawa Bibi Sakina bearing Door No. No. 22-3-420, old No. 1107, situated at Kaman Alchi Baig near Mandi Meer Alam, Hyderabad is a registered and notified Wakf Property published in the Official Gazette No. 11-A, dated 16.03.1989 and Sl. No. 76 at Page No. 20 comprising extent of 205.05 square yards, in respect of the said property, the Board issued notice under Section 54 (1) of the Act against the encroacher Smt. Shahzadi Begum and after following the procedure contemplated 4 thereunder, the Revenue Divisional Officer, Hyderabad passed orders under Section 55 for her eviction.
It is further stated that Gazette notification has become final and the same can be challenged before the Wakf Tribunal within one year of publication of notification in the Gazette and there is an alternative remedy available to petitioner under Section 83 of the Act. Hence, the present Writ Petition is time barred as such, the same is liable to be dismissed.
The Waqf Board is stated to have initiated steps in accordance with law for protection of Waqf property and the present writ petition is an attempt to prevent the Board from taking action against petitioner in accordance with law. Therefore, this respondent seeks to dismiss the Writ Petition.
5. The 4th respondent also had come up with the counter stating that on 16.01.2019, they received a complaint from the 3rd respondent i.e. Chief Executive Officer, Telangana State Waqf Board stating that petitioner and others have taken up construction over Waqf property and also damaging the Waqf Property, basing upon which, they registered FIR No. 11 of 2019 for the offences under Section 52-A of the Act on 17.01.2019 at 16.00 hrs. During the course of investigation, it is disclosed that petitioner and others illegally and unauthorizedly taken up 5 construction over the waqf property; subsequently, this respondent had also addressed a letter to the Sub-Registrars concerned with a request to furnish certain information / certified documents of the subject property.
It is emphatically stated that this respondent threatened petitioner to stop construction. It is further stated that with regard to the dispute in title of subject property, it is between petitioner and the 3rd respondent, as such, they have nothing to do with the same.
6. Petitioner also filed a reply-affidavit stating that subject property was in the name of Syed Abbas Hussain Naqvi, S/o. Syed Vilayath Hussain Naqvi. The said property was succeeded from his father Syed Vilayath Hussain Naqvi. The same was sold out to Mayadevi under registered Doc. No.9 of 1976 as such Mayadevi was absolute owner and possessor of the said house. The 3rd respondent has not disclosed how the subject house was made as waqf; in fact, as per the Act, for creating a valid waqf, declaration of dedication should be made by contemporaneously with act of dedication. The Waqf must divest himself of the ownership of the property, the three essentials of valid waqf are, 1) Perpetuity, 2) Irrevocability and
3) Inalienability.
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It is further stated that Gazette Notification is also issued under the repealed Act of 1954, as such it is crystal clear that the subject property does not belong to the 3rd respondent and it is purely a private property. It is relevant to mention here that Mayadevi had constructed the said house with the permission granted in her favour by the competent authority of MCH, as such the claim of the 3rd respondent is baseless and without any valid and substantial documents.
It is relevant to mention that subject property is never shown as waqf property even in MCH office and more so the house property is being shown in the town survey as private property as such there is no valid reasons to believe that petitioner house property is waqf property and it was not created by the owner of the property.
It is respectfully stated that the 3rd respondent is stated to have issued notice under Section 54 (1) of the Act to the encroacher Smt. Shahzadi Begum, however, no such person is residing in their house and they were not issued any notice or called for any explanation under the provisions of the Wakf Act and the 3rd respondent does not have any business to declare house property of petitioner as waqf nor produced any valid documents as such the subject property of the petitioner does not fall under the provisions of the Act.
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According to petitioner, petitioner had made a request on 12.02.2020 to the 3rd respondent to furnish information in creating waqf against his house property and also requested to furnish the names of the persons who created waqf and their title, but the 3rd respondent is not in a position to furnish the same, as such there is no reason to believe that the subject house property belongs to the 3rd respondent.
It is finally stated that the 3rd respondent could not establish their claim against petitioner's house property and more so the Gazette Notification itself is illegal and unsustainable in the eye of law. Hence, it is not necessary to give weightage to the notification for treating petitioner's house property as waqf and notification itself is a mistake of fact.
7. Heard learned counsel for petitioner Sri Jalli Kanakaiah, Sri Abu Akram, learned Standing Counsel for the Waqf Board and learned Government Pleader for Home and perused the material on record.
8. The averments and counter-averments mentioned supra clearly disclose that there is title dispute with regard to subject property. Further, this Court on 01.12.2022, noticed that survey report is in respect of house No. 4-3-419, but instead of notifying the said property, the Waqf Board had notified the same as House No. 4-3-420 in the Gazette 8 Notification dated 16.03.1989. When directed, learned Standing Counsel failed to get instructions and it is represented that the record room of the Waqf Board is under lock and key. All these circumstances would show that there are disputed questions of fact.
9. When a statutory forum or Tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters, the High Court should not normally permit such persons to ventilate their grievances before it by entertaining petitions under Article 226, is a legal position which is too well-settled. The Hon'ble Supreme Court in M/s South Indian Bank Ltd. V. Naveen Mathew Philip (Civil Appeal No. 2861-2862 of 2023) decided on 17.04.2023, observed as under:
" When a statute prescribes a particular mode, an attempt to circumvent shall not be encouraged by a writ court. A litigant cannot avoid the non-compliance of approaching the Tribunal which requires the prescription of fees and use the constitutional remedy as an alternative.
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While doing so, we are conscious of the fact that the powers conferred under Article 226 of the Constitution of India are rather wide but are required to be exercised only in extraordinary circumstances in matters pertaining to proceedings and adjudicatory scheme qua a statute, more so in commercial matters involving a lender and a borrower, when the legislature has provided for a specific mechanism for appropriate redressal."9
10. In United Bank of India v. Satyawati Tondon 1, the Hon'ble Supreme Court, while deciding on the question of interference of High Court under writ jurisdiction when an effective and alternative remedy is available, observed as under:
" It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision etc. and the particular legislation contains a detailed mechanism for redressal of his grievance."
11. Recently, the Division Bench of this Court in Writ Appeal No.1480 of 2009, vide order dated 27.02.2024, while observing that 'the Writ Petition filed by respondent No.1 involves adjudication of the disputed questions of fact which could not have been gone into in a summary proceeding under Article 226 of the Constitution of India, disposed of the Appeal. However, liberty is reserved to respondent No.1 to take recourse to such remedy as may be available to him before an appropriate forum where the disputed questions of fact can be adjudicated.' 1 (2010) 8 SCC 110 10
12. In view of the settled legal position highlighted supra, this Court is of the opinion that this Court is not the appropriate forum to decide the disputed questions of fact.
13. The Writ Petition is therefore, disposed of directing petitioner to approach the Waqf Tribunal under Section 83 of the Waqf Act, 1995, for redressal of his grievance. No costs.
14. Consequently, the miscellaneous Applications, if any shall stand closed.
-------------------------------------- NAGESH BHEEMAPAKA, J 26th April 2024 ksld